mcaa child support conference june 2015 handout for ... · handout for . deceased parent/children ....
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MCAA CHILD SUPPORT CONFERENCE
June 2015
HANDOUT FOR
DECEASED PARENTCHILDREN
SESSION
1 Information from DHS-SIR (DHS policy documentation) 2 Dakota County Forms 3 Minnesota Supreme Court Website Forms 4 Other Resources from Minnesota Supreme Court or Other Websites 5 Selected statutes and case law
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2
DHS-SIR DOCUMENTATION THE INFORMATION BELOW IS FROM DHS-SIR AS OF JUNE 10 2015 CHECK ON-LINE FOR MOST CURRENT VERSION AS INDICATED IN THE FOLLOWING DHS-
NOTICE
Notice Current policy supported by CSED is the online version of User Documentation Access the online material published on DHS SIR to be sure you are referencing the most up-to-date and accurate information Do not store printed copies of User Documentation as they may quickly become out of date
(Sandra Torgersonrsquos note regarding below policy death record information obtained from public sources may be subject to release I suggest CSOs consult
their county attorney regarding data practices issues for additional guidance and direction)
TOPIC CASE CLOSURE SECTION DEATH OF A PARENT OR ALLEGED FATHER (ALF)
DEATH OF A CUSTODIAL PARENT
The Office of Child Support Enforcement does not provide a federal criterion to close a case due to the death of a custodial parent (CP) If the CP is deceased it is possible that the case could close for other reasons under the following federal criteria
bull a current support order no longer exists and the arrears are less than $500 bull no arrears or obligations exist
A case may be closed if the NCP or ALF is deceased and no further action including a levy against the estate can be taken
Data practices limit the information a Child Support Officer (CSO) can share The CSO cannot inform the noncustodial parent (NCP) that the CP is deceased Current support continues until the order is modified Seek the County Attorneyrsquos advice on how to proceed with a case upon the death of a CP
PRISM will create an activity on the Case Activities by Date (CAAD) screen L0278 - CPrsquoS DEATH RECORD FROM SOCIAL SECURITY ADM and worklist L0278 - CHECK CP DEATH INFO-SSA upon receipt of information from the Social Security Administration (SSA) interface
DEATH OF AN NCP OR ALLEGED FATHER (ALF)
Verify the death of an NCP or an ALF using one of the following sources
bull the Minnesota Department of Health bull a copy of the death certificate
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3
bull an obituary notice from a newspaper bull an obituary from some other local publication
Use lsquoReasonrsquo code lsquo901rsquo - NCP DECEASED on the Case Closure Maintenance (CACL) screen if the NCP or ALF is deceased Use lsquoReasonrsquo code lsquo901rsquo if all the following conditions exist
bull the NCP or ALF death is verified bull the date of death has been added to the NCP Demographics (NCDE) screen bull the NCP has no assets the county can levy through probate court
PRISM automatically builds a CACL screen record when there is a date of death record for the NCP or ALF on the NCDE screen In addition PRISM creates activity M9010 ndash NCP DEATH on the CAAD screen
Notify IV-A of the NCPrsquos death to prevent additional M1600 - MAXIS PROGRAM OPENREVIEW CLOSED CASE worklists Put proof of the NCPrsquos death verification in the physical case file
NCP DEATH IN A FOREIGN JURISDICTION
If the NCP dies in a country that does not record deaths ask the CP if heshe can provide a written statement of the NCPs death If the CSO is unable to obtain the statement the case may be eligible for closure under lsquoReasonrsquo code lsquo903rsquo - NCP IN FOREIGN JURISDICTION See the Case Closure Maintenance (CACL) Screen section of this topic for more information on inactivating and creating new case closure records
SSA DEATH INFORMATION
PRISM processes SSA death information from the Federal Care Registry (FCR) once per month for participants who have an Enumeration Verification System-verified social security number against the SSA death master file A CSO may receive one of the following worklists to review the CP or NCPs matched SSA death data
bull L0278 - CHECK CP DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO
The information is included in the daily FCR inbound process and is stored on the SSA Death Detail (SSDD) screen The FCR- Proactive Matching and SSA User Documentation in eMILO provides specific instructions for processing information from SSA The CSO must verify the NCPs death with written documentation such as a death certificate or a copy of an obituary See the FCR ndash Proactive Matching and SSA User Documentation in eMILO for additional information about requesting and receiving a death certificate
STATE VERIFICATION AND EXCHANGE SYSTEM (SVES) DEATH INFORMATION
PRISM could receive SVES data when an automatic or manual locate request exists The SSA Title II Detail (SSTD) and SSA Title XVI Detail (SSSD) PRISM screens will include a date of death and source of information The deceased date source code will assist in determining the validity of the death information The date of death is considered verified if the source code is lsquo1rsquo (SSA District Office
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4
Notification or Manual Adjustment) or lsquo6rsquo (State Notification) For any other source code the CSO must verify the death in writing with a death certificate or a copy of an obituary Update PRISM only after verifying the death in writing
ATTEMPT TO LOCATE ASSETS
The CSO must attempt to locate any assets for the NCP and document the results on PRISM If the NCP dies leaving minor children the court order does not automatically terminate Keep the case open under the following situations
bull pending identification of NCP estate assets bull the CP presents information about verifiable assets and it is possible to reach the assets for
collection
The CSO should consult their County Attorney in the following circumstances
bull to determine if paternity proceedings should continue on a case where the ALF is deceased and an open probate case exists
bull an open probate action exists in your county bull paternity was never established
Check the NCPrsquos county of residence for open probate actions Probate actions can happen anywhere an individual owned real property
Example The CP calls the CSO about the NCPrsquos death The CSO obtains a copy of the death certificate and records the date of death on the NCDE screen The county determines there are no assets available to levy through the probate court The CSO records other attempts to locate assets on the CAAD screen
PRISM EDITS FOR lsquoREASONrsquo CODE lsquo901rsquo
PRISM will not allow the case close with lsquoReasonrsquo code lsquo901rsquo if
bull the date of death is absent on the NCDE screen bull an active balance exists on the Custodial Parent Obligation Detail (CPOD) screen bull an active balance exists on the Employer Obligation Detail (EMOD) screen bull money remains in suspense for this obligor bull an active Income Withholding Detail (INWD) record exists
TOPIC ESTABLISHING PATERNITY SECTION JUDICIAL PROCESS Minnesota has jurisdiction over paternity proceedings if the alleged father (ALF) resides in Minnesota even if the mother and child do not live in or intend to live in Minnesota
Within Minnesota a paternity action may be brought in the county
bull the child resides in
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bull the ALF resides in bull the ALF was found in bull probate proceedings are filed in if the ALF is deceased
Note If the custodial parent (CP) and child reside in Minnesota the county where the child resides is generally responsible for establishing paternity See the SIR MILO Maintaining County topic for more information
If the ALF lives outside of Minnesota the Child Support Agency may be able to use long-arm jurisdiction over him if he
bull engaged in sexual intercourse within Minnesota and the child may have been conceived by that act
bull resided with the child in Minnesota bull is personally served with a summons or a comparable document within Minnesota bull submits to the jurisdiction of Minnesota by consent by entering a general appearance or by
filing a responsive document having the effect of waiving consent to personal jurisdiction bull resided in Minnesota and provided prenatal expenses or support for the child bull owns uses or possesses any real or personal property in Minnesota bull transacts business within Minnesota
If the ALF lives outside of Minnesota and long-arm jurisdiction is not an option see the eMILO Interstate topic for more information
REQUIRED PARTIES IN THE ACTION
The Child Support Officer (CSO) should include all of the following parties when initiating a paternity action
bull the biological mother bull each man presumed to be the father bull each man alleged to be the father bull the representative of the estate if the presumed father or ALF is deceased bull the child if
o a lump sum payment or a compromise settlement is involved o the action is to declare the nonexistence of the father-child relationship and the child is a
minor o the mother denies the existence of the presumed father-child or ALF-child relationship o an alleged or presumed father brings an action
bull the Child Support Agency if the mother has assigned her rights to child support bull the Commissioner of Human Services if a lump sum payment or a compromise settlement is
involved
SEE DHS-SIR FOR REMAINDER OF POLICY
+++++++++++++++++++
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6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
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7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
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8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
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9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
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10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
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11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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13
Sample from prior case ndash obtained genetic sample from coroner
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14
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15
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16
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17
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18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
2
DHS-SIR DOCUMENTATION THE INFORMATION BELOW IS FROM DHS-SIR AS OF JUNE 10 2015 CHECK ON-LINE FOR MOST CURRENT VERSION AS INDICATED IN THE FOLLOWING DHS-
NOTICE
Notice Current policy supported by CSED is the online version of User Documentation Access the online material published on DHS SIR to be sure you are referencing the most up-to-date and accurate information Do not store printed copies of User Documentation as they may quickly become out of date
(Sandra Torgersonrsquos note regarding below policy death record information obtained from public sources may be subject to release I suggest CSOs consult
their county attorney regarding data practices issues for additional guidance and direction)
TOPIC CASE CLOSURE SECTION DEATH OF A PARENT OR ALLEGED FATHER (ALF)
DEATH OF A CUSTODIAL PARENT
The Office of Child Support Enforcement does not provide a federal criterion to close a case due to the death of a custodial parent (CP) If the CP is deceased it is possible that the case could close for other reasons under the following federal criteria
bull a current support order no longer exists and the arrears are less than $500 bull no arrears or obligations exist
A case may be closed if the NCP or ALF is deceased and no further action including a levy against the estate can be taken
Data practices limit the information a Child Support Officer (CSO) can share The CSO cannot inform the noncustodial parent (NCP) that the CP is deceased Current support continues until the order is modified Seek the County Attorneyrsquos advice on how to proceed with a case upon the death of a CP
PRISM will create an activity on the Case Activities by Date (CAAD) screen L0278 - CPrsquoS DEATH RECORD FROM SOCIAL SECURITY ADM and worklist L0278 - CHECK CP DEATH INFO-SSA upon receipt of information from the Social Security Administration (SSA) interface
DEATH OF AN NCP OR ALLEGED FATHER (ALF)
Verify the death of an NCP or an ALF using one of the following sources
bull the Minnesota Department of Health bull a copy of the death certificate
Page
3
bull an obituary notice from a newspaper bull an obituary from some other local publication
Use lsquoReasonrsquo code lsquo901rsquo - NCP DECEASED on the Case Closure Maintenance (CACL) screen if the NCP or ALF is deceased Use lsquoReasonrsquo code lsquo901rsquo if all the following conditions exist
bull the NCP or ALF death is verified bull the date of death has been added to the NCP Demographics (NCDE) screen bull the NCP has no assets the county can levy through probate court
PRISM automatically builds a CACL screen record when there is a date of death record for the NCP or ALF on the NCDE screen In addition PRISM creates activity M9010 ndash NCP DEATH on the CAAD screen
Notify IV-A of the NCPrsquos death to prevent additional M1600 - MAXIS PROGRAM OPENREVIEW CLOSED CASE worklists Put proof of the NCPrsquos death verification in the physical case file
NCP DEATH IN A FOREIGN JURISDICTION
If the NCP dies in a country that does not record deaths ask the CP if heshe can provide a written statement of the NCPs death If the CSO is unable to obtain the statement the case may be eligible for closure under lsquoReasonrsquo code lsquo903rsquo - NCP IN FOREIGN JURISDICTION See the Case Closure Maintenance (CACL) Screen section of this topic for more information on inactivating and creating new case closure records
SSA DEATH INFORMATION
PRISM processes SSA death information from the Federal Care Registry (FCR) once per month for participants who have an Enumeration Verification System-verified social security number against the SSA death master file A CSO may receive one of the following worklists to review the CP or NCPs matched SSA death data
bull L0278 - CHECK CP DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO
The information is included in the daily FCR inbound process and is stored on the SSA Death Detail (SSDD) screen The FCR- Proactive Matching and SSA User Documentation in eMILO provides specific instructions for processing information from SSA The CSO must verify the NCPs death with written documentation such as a death certificate or a copy of an obituary See the FCR ndash Proactive Matching and SSA User Documentation in eMILO for additional information about requesting and receiving a death certificate
STATE VERIFICATION AND EXCHANGE SYSTEM (SVES) DEATH INFORMATION
PRISM could receive SVES data when an automatic or manual locate request exists The SSA Title II Detail (SSTD) and SSA Title XVI Detail (SSSD) PRISM screens will include a date of death and source of information The deceased date source code will assist in determining the validity of the death information The date of death is considered verified if the source code is lsquo1rsquo (SSA District Office
Page
4
Notification or Manual Adjustment) or lsquo6rsquo (State Notification) For any other source code the CSO must verify the death in writing with a death certificate or a copy of an obituary Update PRISM only after verifying the death in writing
ATTEMPT TO LOCATE ASSETS
The CSO must attempt to locate any assets for the NCP and document the results on PRISM If the NCP dies leaving minor children the court order does not automatically terminate Keep the case open under the following situations
bull pending identification of NCP estate assets bull the CP presents information about verifiable assets and it is possible to reach the assets for
collection
The CSO should consult their County Attorney in the following circumstances
bull to determine if paternity proceedings should continue on a case where the ALF is deceased and an open probate case exists
bull an open probate action exists in your county bull paternity was never established
Check the NCPrsquos county of residence for open probate actions Probate actions can happen anywhere an individual owned real property
Example The CP calls the CSO about the NCPrsquos death The CSO obtains a copy of the death certificate and records the date of death on the NCDE screen The county determines there are no assets available to levy through the probate court The CSO records other attempts to locate assets on the CAAD screen
PRISM EDITS FOR lsquoREASONrsquo CODE lsquo901rsquo
PRISM will not allow the case close with lsquoReasonrsquo code lsquo901rsquo if
bull the date of death is absent on the NCDE screen bull an active balance exists on the Custodial Parent Obligation Detail (CPOD) screen bull an active balance exists on the Employer Obligation Detail (EMOD) screen bull money remains in suspense for this obligor bull an active Income Withholding Detail (INWD) record exists
TOPIC ESTABLISHING PATERNITY SECTION JUDICIAL PROCESS Minnesota has jurisdiction over paternity proceedings if the alleged father (ALF) resides in Minnesota even if the mother and child do not live in or intend to live in Minnesota
Within Minnesota a paternity action may be brought in the county
bull the child resides in
Page
5
bull the ALF resides in bull the ALF was found in bull probate proceedings are filed in if the ALF is deceased
Note If the custodial parent (CP) and child reside in Minnesota the county where the child resides is generally responsible for establishing paternity See the SIR MILO Maintaining County topic for more information
If the ALF lives outside of Minnesota the Child Support Agency may be able to use long-arm jurisdiction over him if he
bull engaged in sexual intercourse within Minnesota and the child may have been conceived by that act
bull resided with the child in Minnesota bull is personally served with a summons or a comparable document within Minnesota bull submits to the jurisdiction of Minnesota by consent by entering a general appearance or by
filing a responsive document having the effect of waiving consent to personal jurisdiction bull resided in Minnesota and provided prenatal expenses or support for the child bull owns uses or possesses any real or personal property in Minnesota bull transacts business within Minnesota
If the ALF lives outside of Minnesota and long-arm jurisdiction is not an option see the eMILO Interstate topic for more information
REQUIRED PARTIES IN THE ACTION
The Child Support Officer (CSO) should include all of the following parties when initiating a paternity action
bull the biological mother bull each man presumed to be the father bull each man alleged to be the father bull the representative of the estate if the presumed father or ALF is deceased bull the child if
o a lump sum payment or a compromise settlement is involved o the action is to declare the nonexistence of the father-child relationship and the child is a
minor o the mother denies the existence of the presumed father-child or ALF-child relationship o an alleged or presumed father brings an action
bull the Child Support Agency if the mother has assigned her rights to child support bull the Commissioner of Human Services if a lump sum payment or a compromise settlement is
involved
SEE DHS-SIR FOR REMAINDER OF POLICY
+++++++++++++++++++
Page
6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
Page
7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
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10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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13
Sample from prior case ndash obtained genetic sample from coroner
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14
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15
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16
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17
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18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
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23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
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25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
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26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
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28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
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29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
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31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
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32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
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37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
3
bull an obituary notice from a newspaper bull an obituary from some other local publication
Use lsquoReasonrsquo code lsquo901rsquo - NCP DECEASED on the Case Closure Maintenance (CACL) screen if the NCP or ALF is deceased Use lsquoReasonrsquo code lsquo901rsquo if all the following conditions exist
bull the NCP or ALF death is verified bull the date of death has been added to the NCP Demographics (NCDE) screen bull the NCP has no assets the county can levy through probate court
PRISM automatically builds a CACL screen record when there is a date of death record for the NCP or ALF on the NCDE screen In addition PRISM creates activity M9010 ndash NCP DEATH on the CAAD screen
Notify IV-A of the NCPrsquos death to prevent additional M1600 - MAXIS PROGRAM OPENREVIEW CLOSED CASE worklists Put proof of the NCPrsquos death verification in the physical case file
NCP DEATH IN A FOREIGN JURISDICTION
If the NCP dies in a country that does not record deaths ask the CP if heshe can provide a written statement of the NCPs death If the CSO is unable to obtain the statement the case may be eligible for closure under lsquoReasonrsquo code lsquo903rsquo - NCP IN FOREIGN JURISDICTION See the Case Closure Maintenance (CACL) Screen section of this topic for more information on inactivating and creating new case closure records
SSA DEATH INFORMATION
PRISM processes SSA death information from the Federal Care Registry (FCR) once per month for participants who have an Enumeration Verification System-verified social security number against the SSA death master file A CSO may receive one of the following worklists to review the CP or NCPs matched SSA death data
bull L0278 - CHECK CP DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO
The information is included in the daily FCR inbound process and is stored on the SSA Death Detail (SSDD) screen The FCR- Proactive Matching and SSA User Documentation in eMILO provides specific instructions for processing information from SSA The CSO must verify the NCPs death with written documentation such as a death certificate or a copy of an obituary See the FCR ndash Proactive Matching and SSA User Documentation in eMILO for additional information about requesting and receiving a death certificate
STATE VERIFICATION AND EXCHANGE SYSTEM (SVES) DEATH INFORMATION
PRISM could receive SVES data when an automatic or manual locate request exists The SSA Title II Detail (SSTD) and SSA Title XVI Detail (SSSD) PRISM screens will include a date of death and source of information The deceased date source code will assist in determining the validity of the death information The date of death is considered verified if the source code is lsquo1rsquo (SSA District Office
Page
4
Notification or Manual Adjustment) or lsquo6rsquo (State Notification) For any other source code the CSO must verify the death in writing with a death certificate or a copy of an obituary Update PRISM only after verifying the death in writing
ATTEMPT TO LOCATE ASSETS
The CSO must attempt to locate any assets for the NCP and document the results on PRISM If the NCP dies leaving minor children the court order does not automatically terminate Keep the case open under the following situations
bull pending identification of NCP estate assets bull the CP presents information about verifiable assets and it is possible to reach the assets for
collection
The CSO should consult their County Attorney in the following circumstances
bull to determine if paternity proceedings should continue on a case where the ALF is deceased and an open probate case exists
bull an open probate action exists in your county bull paternity was never established
Check the NCPrsquos county of residence for open probate actions Probate actions can happen anywhere an individual owned real property
Example The CP calls the CSO about the NCPrsquos death The CSO obtains a copy of the death certificate and records the date of death on the NCDE screen The county determines there are no assets available to levy through the probate court The CSO records other attempts to locate assets on the CAAD screen
PRISM EDITS FOR lsquoREASONrsquo CODE lsquo901rsquo
PRISM will not allow the case close with lsquoReasonrsquo code lsquo901rsquo if
bull the date of death is absent on the NCDE screen bull an active balance exists on the Custodial Parent Obligation Detail (CPOD) screen bull an active balance exists on the Employer Obligation Detail (EMOD) screen bull money remains in suspense for this obligor bull an active Income Withholding Detail (INWD) record exists
TOPIC ESTABLISHING PATERNITY SECTION JUDICIAL PROCESS Minnesota has jurisdiction over paternity proceedings if the alleged father (ALF) resides in Minnesota even if the mother and child do not live in or intend to live in Minnesota
Within Minnesota a paternity action may be brought in the county
bull the child resides in
Page
5
bull the ALF resides in bull the ALF was found in bull probate proceedings are filed in if the ALF is deceased
Note If the custodial parent (CP) and child reside in Minnesota the county where the child resides is generally responsible for establishing paternity See the SIR MILO Maintaining County topic for more information
If the ALF lives outside of Minnesota the Child Support Agency may be able to use long-arm jurisdiction over him if he
bull engaged in sexual intercourse within Minnesota and the child may have been conceived by that act
bull resided with the child in Minnesota bull is personally served with a summons or a comparable document within Minnesota bull submits to the jurisdiction of Minnesota by consent by entering a general appearance or by
filing a responsive document having the effect of waiving consent to personal jurisdiction bull resided in Minnesota and provided prenatal expenses or support for the child bull owns uses or possesses any real or personal property in Minnesota bull transacts business within Minnesota
If the ALF lives outside of Minnesota and long-arm jurisdiction is not an option see the eMILO Interstate topic for more information
REQUIRED PARTIES IN THE ACTION
The Child Support Officer (CSO) should include all of the following parties when initiating a paternity action
bull the biological mother bull each man presumed to be the father bull each man alleged to be the father bull the representative of the estate if the presumed father or ALF is deceased bull the child if
o a lump sum payment or a compromise settlement is involved o the action is to declare the nonexistence of the father-child relationship and the child is a
minor o the mother denies the existence of the presumed father-child or ALF-child relationship o an alleged or presumed father brings an action
bull the Child Support Agency if the mother has assigned her rights to child support bull the Commissioner of Human Services if a lump sum payment or a compromise settlement is
involved
SEE DHS-SIR FOR REMAINDER OF POLICY
+++++++++++++++++++
Page
6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
Page
7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
4
Notification or Manual Adjustment) or lsquo6rsquo (State Notification) For any other source code the CSO must verify the death in writing with a death certificate or a copy of an obituary Update PRISM only after verifying the death in writing
ATTEMPT TO LOCATE ASSETS
The CSO must attempt to locate any assets for the NCP and document the results on PRISM If the NCP dies leaving minor children the court order does not automatically terminate Keep the case open under the following situations
bull pending identification of NCP estate assets bull the CP presents information about verifiable assets and it is possible to reach the assets for
collection
The CSO should consult their County Attorney in the following circumstances
bull to determine if paternity proceedings should continue on a case where the ALF is deceased and an open probate case exists
bull an open probate action exists in your county bull paternity was never established
Check the NCPrsquos county of residence for open probate actions Probate actions can happen anywhere an individual owned real property
Example The CP calls the CSO about the NCPrsquos death The CSO obtains a copy of the death certificate and records the date of death on the NCDE screen The county determines there are no assets available to levy through the probate court The CSO records other attempts to locate assets on the CAAD screen
PRISM EDITS FOR lsquoREASONrsquo CODE lsquo901rsquo
PRISM will not allow the case close with lsquoReasonrsquo code lsquo901rsquo if
bull the date of death is absent on the NCDE screen bull an active balance exists on the Custodial Parent Obligation Detail (CPOD) screen bull an active balance exists on the Employer Obligation Detail (EMOD) screen bull money remains in suspense for this obligor bull an active Income Withholding Detail (INWD) record exists
TOPIC ESTABLISHING PATERNITY SECTION JUDICIAL PROCESS Minnesota has jurisdiction over paternity proceedings if the alleged father (ALF) resides in Minnesota even if the mother and child do not live in or intend to live in Minnesota
Within Minnesota a paternity action may be brought in the county
bull the child resides in
Page
5
bull the ALF resides in bull the ALF was found in bull probate proceedings are filed in if the ALF is deceased
Note If the custodial parent (CP) and child reside in Minnesota the county where the child resides is generally responsible for establishing paternity See the SIR MILO Maintaining County topic for more information
If the ALF lives outside of Minnesota the Child Support Agency may be able to use long-arm jurisdiction over him if he
bull engaged in sexual intercourse within Minnesota and the child may have been conceived by that act
bull resided with the child in Minnesota bull is personally served with a summons or a comparable document within Minnesota bull submits to the jurisdiction of Minnesota by consent by entering a general appearance or by
filing a responsive document having the effect of waiving consent to personal jurisdiction bull resided in Minnesota and provided prenatal expenses or support for the child bull owns uses or possesses any real or personal property in Minnesota bull transacts business within Minnesota
If the ALF lives outside of Minnesota and long-arm jurisdiction is not an option see the eMILO Interstate topic for more information
REQUIRED PARTIES IN THE ACTION
The Child Support Officer (CSO) should include all of the following parties when initiating a paternity action
bull the biological mother bull each man presumed to be the father bull each man alleged to be the father bull the representative of the estate if the presumed father or ALF is deceased bull the child if
o a lump sum payment or a compromise settlement is involved o the action is to declare the nonexistence of the father-child relationship and the child is a
minor o the mother denies the existence of the presumed father-child or ALF-child relationship o an alleged or presumed father brings an action
bull the Child Support Agency if the mother has assigned her rights to child support bull the Commissioner of Human Services if a lump sum payment or a compromise settlement is
involved
SEE DHS-SIR FOR REMAINDER OF POLICY
+++++++++++++++++++
Page
6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
Page
7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
5
bull the ALF resides in bull the ALF was found in bull probate proceedings are filed in if the ALF is deceased
Note If the custodial parent (CP) and child reside in Minnesota the county where the child resides is generally responsible for establishing paternity See the SIR MILO Maintaining County topic for more information
If the ALF lives outside of Minnesota the Child Support Agency may be able to use long-arm jurisdiction over him if he
bull engaged in sexual intercourse within Minnesota and the child may have been conceived by that act
bull resided with the child in Minnesota bull is personally served with a summons or a comparable document within Minnesota bull submits to the jurisdiction of Minnesota by consent by entering a general appearance or by
filing a responsive document having the effect of waiving consent to personal jurisdiction bull resided in Minnesota and provided prenatal expenses or support for the child bull owns uses or possesses any real or personal property in Minnesota bull transacts business within Minnesota
If the ALF lives outside of Minnesota and long-arm jurisdiction is not an option see the eMILO Interstate topic for more information
REQUIRED PARTIES IN THE ACTION
The Child Support Officer (CSO) should include all of the following parties when initiating a paternity action
bull the biological mother bull each man presumed to be the father bull each man alleged to be the father bull the representative of the estate if the presumed father or ALF is deceased bull the child if
o a lump sum payment or a compromise settlement is involved o the action is to declare the nonexistence of the father-child relationship and the child is a
minor o the mother denies the existence of the presumed father-child or ALF-child relationship o an alleged or presumed father brings an action
bull the Child Support Agency if the mother has assigned her rights to child support bull the Commissioner of Human Services if a lump sum payment or a compromise settlement is
involved
SEE DHS-SIR FOR REMAINDER OF POLICY
+++++++++++++++++++
Page
6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
Page
7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
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8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
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9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
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10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
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13
Sample from prior case ndash obtained genetic sample from coroner
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14
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15
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16
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17
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18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
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23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
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26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
6
TOPIC MAINTAINING COUNTY SECTION DETERMINING THE MAINTAINING COUNTY Use the criteria outlined below to determine which Minnesota county will maintain a child support case when the custodial parent (CP) and child reside in Minnesota and the county does not need another statersquos IV-D agencyrsquos help to establish an order
PATERNITY NOT ESTABLISHED
A county that receives either a public assistance (PA) referral or nonpublic assistance (NPA) application completes the intake of a paternity case For more information see the Public Assistance (PA) Referrals and Nonpublic Assistance (NPA) Applications sections of this topic
The CPrsquos county of residence is the maintaining county If the CP moves after a county opens the case and if the intake county has not started legal action to establish paternity the CPrsquos new county of residence becomes the maintaining county
Note Starting a legal action to establish paternity is the completion of legal service of process on all parties
Minnesota law allows paternity actions to be brought in the county in which either the child or the alleged father (ALF) resides or is found If the ALF is deceased CSED policy is to bring the paternity action in the county where the child resides However the paternity action can be brought in the county in which probate proceedings have been started
SEE DHS-SIR FOR REMAINDER OF POLICY ++++++++++++++++++++++++++++++++++++++++++
TOPIC CASE CLOSURE SECTION HISTORY AND BACKGROUND
FEDERAL CRITERIA CATEGORIES
In August 1989 The Office of Child Support Enforcement (OCSE) established criteria for states to use when closing child support cases OCSE revised its case closure criteria in March1999 to clarify conditions under which cases may be closed The criteria allow states to close cases that are unlikely to result in any payment collection and to concentrate efforts on cases that present a possibility for collection
OCSE regulations allow states to close a child support case by choosing one of 12 federal criteria for case closure Nine of these 12 criteria require that the recipient of services either a custodial parent (CP) or a noncustodial parent (NCP) receive a 60-day advance notice of intent to close the case Check the following list for the federal closing criteria and their respective PRISM case closure lsquoReasonrsquo codes for use on the Case Closure Maintenance (CACL) screen
Federal Criteria Brief Descriptions PRISM Reason Code and Description
(1) No current support order exists and arrears are less than $500
bull lsquo919rsquo - NO CURR ORDER amp ARRS lt $500 bull lsquo921rsquo - NO ARREARSNO OBLIGATION
(2) The NCP or alleged father (ALF) is deceased and no further action including a levy against the estate can be taken
bull lsquo901rsquo - NCP DECEASED
SEE DHS-SIR FOR REMAINDER OF POLICY
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7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
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10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
7
IPP Topic Federal Case Registry (FCR) Subtopic Proactive Matching and SSA Procedures Incoming SSA records are matched with all PRISM participants and are displayed on the SSA Death Detail (SSDD) screen when there is a match The Child Support Officer receives one of the following worklists to review the SSA Death data for the matched participant
bull L0278 - CHECK CP DEATH INFO-SSA bull L0279 - CHECK CHILD DEATH INFO-SSA bull L0280 - CHECK NCP DEATH INFO-SSA bull L0284 - CHANGE OF CP DEATH INFO bull L0286 - CHANGE OF NCP DEATH INFO bull L0288 - CHANGE OF CHILD DEATH INFO
Selecting the worklist brings the Child Support Officer to the SSDD screen with the most recent record received displayed on the screen Each record contains an indicator to identify the type of record an EVS-verified NameSSN combination the date of death and last known residence city state and ZIP code for the participant The city state and ZIP code where the SSA sent the $250 death benefit payment is also included The death benefit address may reflect the location of the funeral home if the payment was used to offset the participantrsquos burial costs The Child Support Officer should compare the SSA address information with current address information on PRISM In cases without a PRISM known address the SSA address may be an indication of the general location of the participant The location information may assist in verifying the participantrsquos death and in filing a claim on the deceased participantrsquos estate The Child Support Officer must obtain written verification of the death such as a death certificate or a copy of an obituary (For further information on obtaining a death certificate see the Requests for Birth and Death Certificates section in the Case Maintenance IPP (topic) Participant Data subtopic) Add the appropriate activity to the participantrsquos case on the Case Activity by Date (CAAD) screen when requesting and receiving a death certificate
bull M2657 CP DEATH CERTIFICATE REQUESTED bull M2658 CP DEATH CERTIFICATE RECEIVED bull M2659 NCP DEATH CERTIFICATE REQUESTED bull M2660 NCP DEATH CERTIFICATE RECEIVED bull M2661 CHILD DEATH CERTIFICATE REQUESTED bull M2662 CHILD DEATH CERTIFICATE RECEIVED
When the death verification is received update the deceased date in the DecDt field on the appropriate PRISM demographic screen based on the participantrsquos role on a case Adding the deceased date adds the appropriate activity to the participantrsquos case on CAAD
bull CP Demographics (CPDE) Adds Activity M9110 lsquoCP DEATHrsquo bull NCP Demographics (NCDE) Adds Activity M9010 lsquoNCP DEATHrsquo bull Child Demographics (CHDE) Adds Activity M9210 lsquoCHILD DEATHrsquo
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
8
The Child Support Officer has the following options in the Action field of the SSDD screen bull Entering N (Next) in the Action field takes the Child Support Officer to the next death
record for that participant Multiple records exist when a previously sent record has been changed or deleted The records are reviewed to identify the changes
bull Entering D (Display) in the Action field displays the details of a specific record If the information is not available from the SSA fields may appear as blanks or spaces When this happens the Child Support Officer should seek further information on the field or screen by pressing ltF1gt to display the help text
bull Entering B (Browse) in the Action field takes the Child Support Officer to the SSDD browse screen for a listing of all the Social Security Death records received for that participant To display a specific record the Child Support Officer should move the cursor to the desired record and press ltENTERgt or complete the information in the MCI and Received Date fields directly above the direct command line and press ltENTERgt
bull Entering M (Modify) in the Action field when adding a Y (Yes) in the Reviewed field indicates that the Child Support Officer reviewed the information Once the Y is added the field can no longer be modified Entering a Y purges the worklist and adds the appropriate Review activity to the Case Activity by Date (CAAD) screen for all the participantrsquos cases - L0281- CPrsquoS DEATH RECORD FROM SSA REVIEWED - L0282 - CHILDrsquoS DEATH RECORD FROM SSA REVIEWED - L0283 - NCPrsquoS DEATH RECORD FROM SSA REVIEWED - L0285 - REVIEWED CHANGE OF CP DEATH INFO - L0287 - REVIEWED CHANGE OF NCP DEATH INFO - L0289 - REVIEWED CHANGE OF CHILD DEATH INFO
Note If multiple SSA Death worklists exist for the same participant the most recent record will always be displayed on the SSDD screen regardless of the worklist selected The Child Support officer should enter a B to display the list of all the participantrsquos records in this situation Each record must be reviewed and a Y entered in the Reviewed field to purge all the worklists
+++++++++++++++++++++++++++++++++++++++++++++++
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
9
TOPIC EMANCIPATION SECTION ASSISTS
WORKLISTS
Worklist What Creates It Target Screen What to do
M0300 - CHECK FOR RESPONSE FROM CP-EMANC
F0300 letter about emancipation was sent to the custodial parent (CP) 15 days before
CAAD Review the Case Activities by Date (CAAD) screen to see if there was a response from the CP
M0306 - CHECK FOR SCHOOL ENROLLMENT VERIFICATION
F0306 letter requesting proof of school enrollment was sent to the CP 15 days before
bull If the CP fails to respond to the notice use the end of the month when the response was due as the emancipation date
bull If the CP responds to the notice that the child is no longer in school use the last day of the month the response was received as the emancipation date
bull If the CP verifies the child is still in school update the Case Closure Maintenance (CACL) screen with the graduation date and reassess for closure at that time
M0934 - CK CHILD EMANCIPATION
PRISM checks quarterly for a child on case whose status is active and
bull is over 18 or bull whose birthday
is missing or bull is deceased
CAST
The Worklist Description field on PRISM indicates the MCI for the appropriate child and the reason for the worklist The Child Support Officer should verify if the child is still in school if the reason is over 18 on the Case Status (CAST) screen Otherwise determine if the case meets the case closure criteria
++++++++++++++++++++++++++++++++++++++++++
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
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27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
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28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
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29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
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31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
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32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
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33
VERIFICATION OF DEATH ndash MDH WEBSITE
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34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
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37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
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38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
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39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
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40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
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42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
10
Dakota County ProcedureForms
Summary of Probate Claims Procedure - Dakota County Child Support Cases
1 Notice of Death of Obligor
a If no formal notice of the obligorrsquos death has been received file a Demand for Notice in the county of the decedentrsquos residence and in any other county where the decedent owned real estate Minn Stat sect 5243-204
b If published notice of the obligorrsquos death has been received do not file a Demand for
Notice unless you want to receive notices of all probate filings regarding the estate
2 Calendar Dates and Deadlines a The Notice and Order for Hearing commences the probate also constitutes notice to
creditors to file claims The Notice may be in the form of a newspaper clipping of the publication of the Notice Claims must be filed within four months of the date of the Notice Minn Stat sect 5243-803
b Claims that are filed timely are automatically allowed unless partially or wholly disallowed
by the Personal Representative within 2 months after the last date to file claims Minn Stat sect 5243-806(a)
c A proceeding for the allowance of a disallowed claim must be filed within 2 months after
mailing the notice of disallowance or the claim is automatically barred Minn Stat sect 5243-806(a)
3 Claims
a A claim for child support is a general claim under Minn Stat sect 5243-805 b Claims for child support arise before the death of an obligor under Minn Stat sect 5243-
803
c Written Statement of Claim should have an explanation of the debt attached
4 Payment of the Claim
a When the claim is paid in whole or in part it is been our practice to file the original of our Receipt with the Probate Division of District Court and a copy to the attorney for the estate See Receipt of Payment form attached
b It is also our practice to make sure the check clears before we file the Receipt
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
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51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
11
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith the personal representative of the above named estate in full satisfaction of its claim and fully releases said estate from any and all claims
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
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49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
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51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
12
CASE TYPE Probate STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT
_________________________________________________________________________________ In Re Estate of John Doe Court File No
Decedent RECEIPT OF PARTIAL PAYMENT AND RELEASE OF CLAIM
__________________________________________________________________________________
Claimant Dakota County Community Services hereby acknowledges receipt of the sum of $ from Jane Smith daughter and heir of the Decedent in partial satisfaction of its claim and fully releases said estate from any and all claims except as to later discovered property if any which may be acquired by the estate and which is not listed or referenced on the Decree of Descent on file with the above Court
Claimant also hereby releases and withdraws the Demand for Notice it filed herein if any
Dated_____________________ JAMES C BACKSTROM DAKOTA COUNTY ATTORNEY By_________________________________ Ima D Lawyer Assistant County Attorney Attorney Reg No Dakota County Judicial Center 1560 Highway 55 Hastings Minnesota 55033 Telephone (651) 438-4438
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
Page
15
Page
16
Page
17
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
13
Sample from prior case ndash obtained genetic sample from coroner
Page
14
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15
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16
Page
17
Page
18
Page
19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
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14
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15
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16
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17
Page
18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
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15
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16
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17
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18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
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16
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17
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18
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19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
17
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18
Page
19
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20
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21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
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24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
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29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
18
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
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25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
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26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
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27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
19
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
20
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
21
Minnesota Supreme Court and Other Website Information
(As of June 10 2015)
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
22
(Rev 308)
INSTRUCTIONS FOR DEMAND FOR NOTICE Minnesota Statutes sect 5243-204
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a financial or property interest in an estate and want to be notified of all orders and filings pertaining to the decedentrsquos estate
If you are not sure that this form applies to your situation see a lawyer for help
WHAT TO DO AFTER YOU HAVE COMPLETED THE DEMAND FOR NOTICE
1 File the Demand for Notice form at the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death
2 If an estate file is currently on file in the Court Administratorrsquos Office the Demand for Notice will be filed in the estate file and the personal representative will then be notified of your Demand for Notice They are then required to notify you of all orders and filings pertaining to the decedentrsquos estate Note If you have a claim against the estate you should file a Written Statement of Claim within the appropriate time limits
3 If there is no estate file open in the Court Administratorrsquos Office your Demand for Notice will remain on file with the Court Administratorrsquos Office Once an estate proceeding has been commenced you will then be notified of all orders and filings pertaining to the decedentrsquos estate (Note If no estate file is opened within a three year period of time after the death of the decedent your Demand for Notice will be destroyed pursuant to the record retention schedule of the court)
Helpful materials may be found at your public county law library For a directory see httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court
administrator or call the Minnesota State Law Library at 651-296-2775
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
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36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
23
State of Minnesota District Court County Judicial District Court File Number Case Type In the Matter of the Estate of DEMAND FOR NOTICE (Full Name) Decedent Date of Death ______________________
1 I state my name is ______________________________________________________ 2 My address and telephone number are _______________________________________
_______________________________________________________________________
3 I have a financial or property interest in the Estate of the Decedent for the following reasons _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
4 I demand notice of all orders and filings pertaining to the Estate Notice shall be served
upon me at the address stated above 5 Under penalties for perjury I declare or affirm that I have read this document and I know
or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip PRO302 State ENG Rev 906
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
24
INSTRUCTIONS FOR WRITTEN STATEMENT OF CLAIM
Minnesota Statutes sect 5243-804 subd (1)
USE THIS FORM AND INSTRUCTIONS ONLY IF THE FOLLOWING FACTORS APPLY TO YOUR SITUATION
bull You have a claim against the estate of a decedent bull There is an estate file open in the Probate Division of the Court Administratorrsquos Office in
the county where the decedent resided at the time of death Caution You must file your claim within the allotted creditorrsquos time period
bull If there is no estate file open in the Probate Division of the Court Administratorrsquos Office in the county where the decedent resided at the time of death you may
a) Complete and follow the instructions for filing a Demand for Notice or b) Complete a probate of Decedentrsquos estate if more than 45 days have passed
since the date of death (NOTE You are strongly urged to consult an attorney before commencing a probate proceeding as a creditor to determine whether this is an appropriate option for you)
WHAT TO DO AFTER YOU HAVE COMPLETED THE WRITTEN STATEMENT OF CLAIM FORM
1 Deliver this form to the personal representative of the estate or to the Probate Division of the Court Administratorrsquos Office where the decedentrsquos estate file is open for the filing of claims
2 The personal representative will then respond to your claim by either allowing or disallowing the claim
3 If the personal representative disallows your claim you will then have to make a choice of accepting the disallowance or petition the court for allowance of the claim
Caution There are specific time limits and specific procedures for the processing of claims Please refer to Minnesota Statutes sectsect 5243-801 through 817 or contact a lawyer if you have further questions or need further assistance
Helpful materials may be found at your public county law library For a directory see
httpwwwlawlibrarystatemnuscllppubdirrtf For more information contact your court administrator or call the Minnesota State Law Library at 651-296-2775
PRO401 State ENG Rev 308 wwwmncourtsgovforms
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
25
State of Minnesota
District Court County Judicial District Court File Number Case Type In the Matter of the Estate of WRITTEN STATEMENT OF CLAIM (Full Name) Decedent
6 I state my name is ______________________________________________________
and I have a valid claim against this estate 7 My address and telephone number are _______________________________________
_______________________________________________________________________ 8 The Estate is or will become indebted to me in the amount of $_____________________ 9 The nature of the claim is _________________________________________________
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 The claim arose prior to the death of the Decedent on or about____________________ or after the death of the Decedent on or about ____________________
11 The claim is unsecured or secured by ______________________________________________
_______________________________________________________________________ 12 The claim is is not based on a contract which makes a provision for interest 8 The claim was or will be due and payable on __________________________________ 9 If the claim is contingent or unliquidated the nature of the uncertainty is as follows ___
_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________
10 Under penalties for perjury I declare or affirm that I have read this document and I know or believe its representations are true and complete
Dated Signature
Name
Street Address
CityStateZip
PRO402 State ENG Rev 906 wwwmncourtsgovforms
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
26
INFORMATION ABOUT PROBATE PROCEEDINGS IN MINNESOTA
bull The information on probate proceedings that is contained on the Judicial
Branch website is not intended to be a manual or a comprehensive instruction guide Complete information about informal and formal probate may be found in Minnesota Chapters 524 and 525 the Trust and Probate Court Rules or from an attorney experienced in probate practice Court staff are not allowed to give legal advice or advise someone on how to handle a particular estate If you need legal answers you should seek an attorney to advise you
bull Probate is the legal process of settling your estate in court after you die
Probating an estate begins by filing an application or petition with the Court Administratorrsquos Office Types of probate proceedings include formal informal determination of descent summary special administration ancillary and subsequent administrations
bull Not all estates are required to be probated or brought before the court
The value of the estate and the type of assets will affect a decision on how to proceed An example of a non-court probate procedure that may be used is an Affidavit for Collection of Personal Property
bull Most counties in Minnesota have a person who is able to provide some
information to you regarding the informal probate proceeding and procedures for their county This person is called the Probate Registrar and can be reached by contacting the Court Administratorrsquos Office
bull Informal probate is designed for estates in which there is no need for
court supervision nor a judicial decision or interpretation of a legal problem To qualify for the informal probate process an estate must be free of legal disputes uncertainties or complex administrative requirements The Probate Registrar may deny an application for informal probate and the estate then will proceed through formal court proceedings in which the judge will preside over the case PRO101 State ENG Rev 906 wwwmncourtsgovforms Page 26 of 56
Judicial Branch Home gt Eighth Judicial District Home gt Court Administration gt Kandiyohi County gt
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
27
Probate Estates What is probate
Probate is the legal process of settling an estate after a person has died A petition must be filed with the
court and a personal representative must be appointed The personal representative is responsible for the
following
bull Collection of inventories and appraisal of assets of the person who has died
bull Protection of the estates assets
bull Payment of decedents debts
bull Distribution of the remaining assets to the proper parties as provided by law
When is probate unnecessary
There is generally no need for probate if a person dies and
bull the person owns personal property in hisher name alone that is valued less than $20000
bull the person owns no real property in hisher name alone
When is probate necessary
bull If a person dies and owns real estate (regardless of value) either in hisher name alone or as a
tenant in common with someone else a probate proceeding is required
bull When a person dies and has no real property but has personal property in hisher name alone
totaling $20000 or more a probate proceeding must be filed
bull When a person dies and has a combination of real property and any amount of personal property in
hisher name alone a probate must be filed
If a person dies leaving a Will is there a need for probate
If someone dies leaving a Will (testate) it does not automatically mean that there is no need for probate
The determining factor is how the assets were held as of the date of death See the answer above describing
situations where probate is necessary
WHEN A PROBATE IS NEEDED IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN
ATTORNEY
Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
28
Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge Minnesota
Statute 5243-305 gives the Probate Registrar the authority to reject any application for informal probate for
any reason If a Will is involved that has a survivorship clause in it you cannot apply for an informal probate
until after the time stated in the survivorship clause has lapsed If the Probate Registrar rejects your
informal probate petition you may need to file a formal probate petition that will be heard by a judge
Informal probate is an unsupervised probate process that is absent of complexity and problems that need
court involvement protection supervision or adjudication It may be used when there is a need to begin
the probate process in a short amount of time (ie stock fluctuations involved)
An informal application will not be accepted if any of the following conditions apply
bull Minor children are involved
bull Real property is involved
bull The estate is insolvent
bull There are unknown heirs
bull The original Will cannot be found
bull There is disagreement among the heirs or devisees
bull If there is any reason for a judge to sign an order or decree
In informal proceedings the Personal Representative is appointed by Probate Registrar to administer the
estate
After the informal probate has been fully administered the personal representative should file an
Unsupervised Personal Representatives Statement to Close Estate with the Probate Court No other forms
need to be filed with the Probate Court during administration
Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised
administrations Formal probate is a better way to proceed if there are problems with the estate and a judge
is needed to make determinations A formal probate should be filed if
bull There are problems to resolve among the parties
bull If there are ambiguous or impossible provisions in a Will that need clarification
bull If interests of vulnerable parties (ie minors or creditors) need protection
bull The validity of the Will must be determined
bull If the estate requires supervision of complex administration procedures
bull If proceeds of estate must be distributed differently from the terms of the Will
What is a creditor
A creditor is a party asserting a claim against an estate
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
29
What is a devisee
A devisee is a person designated by will to receive real andor personal property of an estate
Who are considered heirs of an estate
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not
have a Will
Who are considered interested persons of an estate
Heirs devisees creditors beneficiaries and any others having a property right in or a claim to a decedents
estate
What Minnesota Statutes apply to a probate court
Chapters 524 and 525 Uniform Probate Code and Probate Proceedings are the primary statutes that govern
probate law The Minnesota Rules of Civil Procedure also apply
Roles of the Personal Representative
A personal representative is the party in charge of handling the estate of the decedent Personal
representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in
informal proceeding Responsibilities of the personal representative include
bull Collection inventory and appraisal of assets
bull Protection and preservation of assets
bull Payment of taxes and debts of the decedent and their estate
bull Distribution of remaining assets to the proper parties as specified by law
bull Closing the estate
The principle duties of the personal representative are
bull Determine whether decedent left a will
bull Prepare a list of names ages addresses of decedents heirs and devisees
bull Compile a list of probate and non-probate assets and their value
bull Protect and preserve assets
bull Pay taxes and debts and distribute remaining assets
The personal representative is personally responsible for probating the estate completely and correctly
according to statute and to bring it to a prompt conclusion Most estates are expected to be completed
within an 18 month period If additional time is needed the personal representative must petition the court
for an extension
Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
30
service of allowing the public to file their original wills with the court Wills remain with court administration
even after death If a probate proceeding is initiated the will is filed with the estate file Original wills are
considered permanent court records and copies may be released by the court only upon proof of death
Listed below is Will deposit and withdrawal information
bull Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court
bull Wills may be deposited by a testator or someone under their direction
bull The will must be submitted in a sealed envelope with name address and date of birth on the
outside of the envelope
bull There is a deposit fee charged by the court
bull After a will is filed for safekeeping the testator will receive a Certificate of Deposit and an Affidavit
of Withdrawal The Affidavit of Withdrawal may be used if a testator decides to withdraw the will
at a later date
bull There are two ways to withdraw a will
1 By mail - Complete and send the signed witnessed and notarized Affidavit of Withdrawal form
2 In person - Present the Affidavit of Withdrawal form that has been signed witnessed and
notarized If this form is not available we require a drivers license or state ID card for
identification purposes
Wills - Frequently Asked Questions
How do I file an Ante-mortem Will (ante-mortem means before death) with the Probate Court
A person may want to file a will for safekeeping with the Probate Court In Minnesota a will must be signed
before two witnesses The full name date of birth and address of the testator (the person whose will it is)
must be included on the document There is a filing fee for filing a will with Probate Court
How do I file a Post-mortem Will (post-mortem means after death) with the Probate Court
A post-mortem will can be filed with the Probate Court No filing fee is required
How do I withdraw a Will that has been filed with the Probate Court
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and
the Certificate of Deposit the testator received at the time of filing the will The Certificate of Deposit must
be witnessed and signed by two court deputies before the will is released to the testator The Certificate of
Deposit is then filed with the Probate Court and the will is released to the testator
How do I have an agent or an attorney withdraw my Will
A testators (person whose will it is) agent or attorney may withdraw a will by presenting a notarized
authorization signed by the testator and two witnesses The authorization is filed with the Probate Court and
the will is released to the agent or attorney for the testator
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
31
May I get a copy of my Will after it has been filed with the Probate Court
No copies of an original will can be made during the testators lifetime Once the testator is deceased and
there is no probate filed anyone may get a copy of a will A certified copy of the death certificate must be
presented before a copy can be issued If a copy of a death certificate is already on file with the Probate
Court there is no Probate copies can be made of the will for anyone requesting a copy
If the person has died and there is a probate copies of the will can be made without a death certificate If a
customer wants to file a post-mortem will (for a person already deceased) we can file it There is no filing
fee for filing a post-mortem will
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
32
From httpwwwmncourtsgovDocuments2PublicProbateReasons_to_File_Formal_Probatepdf (Note questions are in the original) File Formal Probate if The will is lost destroyed or otherwise unavailable The court will need the original WillWritten ListCodicil (Question how does one provide the original will if it is lost)
There are ambiguous provisions in a Will that could cause problems in carrying out the intent of a decedent and which require clarification
There are interpretation issues with the will such as a missing dates andor signatures
b a separate writing disposing of money
c a coin collection or property used in trade or business
d markings on the Will
e no residue clause in the Will The estate is insolvent
There are missing heirs or devisees (def) who have a monetary interest in the estate An affidavit is required regarding the search for these heirs
A spouse andor children are omitted in a testate (def) estate causing a dispute
There is any reason a judge needs to sign an order or decree
A Special Needs Trust is named as devisee
A minor child or children are named as heirs in an intestate estate
A minor child or children are named as devisees in a Will if the distribution is over $2000
An attorney is named to serve as the personal representative and is not a family member
There is a Demand for Notice on file (If a 14-day notice requirement or Withdrawal of Demand is filed the court can accept proceeding informally)
There is a determination of Descent in which more than three years have passed from date of death
Distribution in Will does not equal 100
Distribution deviates from terms of the Will unless an Agreement is signed
There are complex determinations regarding heirs in estates without a Will
There are family disputes
The applicant is under 18 or has no priority (def) Declination is at the discretion of the Registrar and can be denied for any reason
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
33
VERIFICATION OF DEATH ndash MDH WEBSITE
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
34
Judicial Branch Home gt SHC Home gt FIND HELP WITH gt
Probate Wills amp Estates Court Forms
Probate Court Forms (statewide)
The MN Judicial Branch publishes some probate forms but not every probate form You could also get forms
at law library from a legal forms publisher or from an attorney You should get advice from a lawyer to
decide which forms to use in your case
Probate Court Forms (2nd District) - approved for Ramsey County District Court
The following forms are available from the Ramsey County District Court including
bull Application for Informal or Formal Probate (Appoint Personal Representative)
bull Renunciation of Priority for Appointment and Right to Nominate Personal Representative
bull Acceptance of Appointment as Personal Representative and Oath By Individual
bull Letters Testamentary and of General Administration
bull Unsupervised Personal Representatives Statement to Close Estate
bull Determination of Descent
bull Inventory and Account forms
bull Closing Forms
CAUTION If your case is not filed in the Ramsey County District Court and you want to use their forms you MUST edit the forms for use in your county and judicial district Check with your local Court Administration about their specific procedures
Non-Court Forms
The Minnesota Legal Services State Support publishes some non-court forms including
bull Health Care Directive Fact Sheet amp Form
bull Power of Attorney Fact Sheet amp Form
The MN Attorney Generals Office also publishes some non-court forms including
bull Health Care Directive Form (pdf)
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
35
bull Power of Attorney Short Form (pdf)
bull Revocation of Power of Attorney Form (pdf)
Laws amp Rules
The following is a list of some of the laws and rules that relate to Probate cases We encourage you to talk
with a lawyer to get advice on how the laws and rules may affect your case Learn more about Laws Rules
amp Legal Research
bull MN Statutes Ch 524 (Uniform Probate Code)
bull MN Statutes Ch 525 (Probate Proceedings)
bull MN Court Rules - Probate
bull MN Court Rules - All
Related Links on Probate Wills amp Estates
bull Estate amp Elder Law Services - Volunteers of America (MN) Legal help for qualifying low-income
clients offered on a reduced-fee basis Other clients pay regular rates for services
bull Guide to Informal Probate (MN Judicial Branch booklet)
bull Probate and Planning A Guide to Planning for the Future (MN Atty Generals Office)
bull Wills Probate amp Trusts - LawHelpMNorg Legal information for non-lawyers including helpful legal
Fact Sheets and other resources
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
36
If
Probate Dictionary A
A-B Trust A joint revocable living trust for a married couple that divides into two
trusts at the death of the first spouse (A) a revocable survivorrsquos trust and (B) an
irrevocable credit bypass trust designed to hold the deceased spousersquos assets up to the
amount of the decedentrsquos available estate tax exclusion
Ademption A gift to a beneficiary is considered adeemed when the testator makes
the gift to the beneficiary or a third party during the testatorrsquos lifetime Ademption by
Extinction occurs if the gift has been transferred to a third party eg by sale
Ademption by Satisfaction occurs if the gift has been advanced See Advancement
Advance Directive See Health Care Directive
Advancement The satisfaction of a testamentary gift prior to the testators
death
Administration The management of a decedentrsquos estate
Administrator A court appointed person or corporation in charge of managing the
estate of a person who dies without leaving a will Administrators have the same duties
as Executors In Minnesota the administrator or executor is called the Personal
Representative
Affiant A person who makes an oath or affirmation and acknowledges the same in
writing In Minnesota this is usually done before a notary public
Affidavit A voluntary written statement of facts confirmed by the oath or affirmation
of the affiant
Affidavit of Collection of Personal Property A sworn notarized statement used to
collect assets of a small estate without going through the probate process (aka
Affidavit of a Small Estate)
After-born Children Those born to a testator after heshe has executed a will
Agent A person authorized by another to act for him
AKA Also Known As (also lower case aka)
Amendment A change or modification See Codicil
Ancestor (an Ascendant) A deceased relative such as a parent or grandparent from
whom one is descended
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
37
Ancillary Administration A secondary administration in a state where the decedent
owned property and which is not the state where the decedent was domiciled
Annuity The right to receive fixed sums of money at regular intervals
Appoint To designate and empower particular person(s) with authority to perform
specified duties
Appraisal An evaluation by disinterested and qualified persons as to the value of
assets
Appreciated Property An increase in market value of an asset personal or real
property from an earlier value due to inflation andor an increase in demand
AscendantsPersons with whom one is related in previous generations ie parents
grandparents etc
Assessed Valuation The value placed upon property by taxing authorities See
FairMarket Value
Assets All property of a person corporation or estate of a decedent real or personal
tangible or intangible
Attorney-in-fact A person with the power granted under a power of attorney
Authentication A process to prove that a copy is an exact duplicate of the original so
as to make it legally admissible in court
Authenticated document An authenticated document includes a statement by a
proper court officer that the document is in proper form and that the person who
certified it is the officer appointed to do so (AKA MN ndash exemplified document) see
certified copy
B
Basis A personrsquos cost or investment in an asset Basis is used to calculate capital gains
(or losses) on a sale (sales price less basis equals capital gain or loss) Basis is adjusted
(stepped-up or down) at a personrsquos death to the fair market value of the asset on the
date of death
Beneficiary An entity who benefits from the act of another
Beneficiary Designation The act whereby the decedent prior to death identifies the
recipient(s) of hisher assets
Bequest A gift by will of personal property
Specific bequest A gift of personal property of a specific class or kind
Residuary bequest A gift of the balance of the decedentrsquos assets after
payment of debts and
other specific gifts
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
38
Bond see Surety bond
Bypass Trust See Credit Shelter Trust
By Right of Representation see Per Stirpes
C
Capacity To have capacity is to be of legal age (majority in Minnesota is age 18) and
to be able to understand the nature and effect of your acts
Certified copy Distinguished from a plain copy by a) raised imprint of a court seal b)
a court stamp and c)an original signature by a court officer stating the certified copy is
a true and correct copy of the original document retained by the Court
Charitable Trust A trust having a charitable organization as a beneficiary
Charitable Remainder Trust (CRT) An irrevocable trust into which the grantor
converts highly appreciated assets (eg investment real estate stocks etc) into a
lifetime income without paying capital gains tax when the asset is sold Utilizing a CRT
reduces income and estate taxes while letting you benefit your favored charity
Claims A debt the decedent owed on the date of death
Claimant An entity making a demand for money or property
Class Gift A gift to all members of a named class For example ones children
ones partners etc
Codicil A supplement or addition to an existing will that modifies explains or
otherwise alters the existing will in some way
Common law marriage Common law marriage is not recognized in Minnesota
Community property Property owned by a husband and wife each having an
undivided one-half interest in the common property because of their marriage
Conservator An entity appointed by a court and given the power to protect the
financial assets and financial interests of a legally disabled person (a ward or
ldquoprotected personrdquo) Since the adoption of the Uniform Guardianship and Protective
Proceedings Act (2003) there has been a change in the definition of a conservator and a
guardian
Contest To oppose or dispute a matter before the court
Contingent Beneficiary A person who is not the primary beneficiary but who may or
will take the benefits of the primary if certain events occur
Cost Basis The original amount paid for an asset
Costs of Administration The actual costs of administering an estate (as opposed to
costs of paying the debts of decedent) eg filing fees appraiser fees sales
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
39
commissions storage expenses delivery charges and the personal representatives
commissions and hisher attorneys fees
Co-Personal Representatives Two or more persons appointed to represent a
decedentrsquos estate who must act together in the administration of the estate
Co-trustees More than one trustee serving at the same time with the same duties
and responsibilities
Credit Shelter Trust (aka Bypass Trustor Exemption Trust or as the B Trust
in AB Trust plans) Created in the will or living trust of a decedent At the death of
the first spouse the trust is funded with the maximum dollars that can be passed tax
free (ldquoapplicable exclusion amountrdquo) from decedentrsquos estate This amount will also pass
tax free at the death of the second spouse
Creditor An individual or entity to which an estate may be indebted
Crummey Power A name taken from a court case (Crummey v IRS) used to describe
the beneficiaryrsquos right of withdrawal provision during a window period in an irrevocable
trust The amount of withdrawal is usually limited to the annual exclusion of the
additions to a trust
Crummey Trust A trust in which its beneficiary has a non-cumulative power to
withdraw a specified amount of principal usually limited to the gift tax annual exclusion
amount only during a limited period of time each year usually no more than a week or
two following the donors transfer of the gift to the trust
In order to qualify for the gift tax annual exclusion amount a gift has to be of a present
interest so assets transferred to a trust for the benefit of another usually fail to qualify
for the gift tax annual exclusion amount and are taxable In order to qualify an asset
transferred to a trust for anothers benefit for the gift tax annual exclusion amount
what Mr Crummy (the taxpayer whose case established the use of trusts that now bear
his name) did was to provide that his beneficiary have the power to withdraw for only
a short period of time after its making any asset that he transferred to the trust for the
beneficiarys benefit The beneficiary must then elect
To exercise hisher power of withdrawal in which case the donors annual gift program
at least as regards that beneficiary will likely stop or
To do nothing allowing hisher power of withdrawal to lapse in which case the donors
annual gift program will likely continue for years to come
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
40
Custodian A person named by a donor testator or personal representative to hold
and manage property on behalf of a minor generally under a statute (eg the Uniform
Transfers to Minors Act) of the donors testatorrsquos or representatives resident state
D
Death Tax All taxes imposed on property or the transfer of property at the death of
the owner(AKA an estate tax or inheritance tax) Minnesota does not have an
inheritance tax
Decedent The person who has died
Demand for Notice A written statement filed after the death of the decedent by a
person with a financial or property interest in a decedentrsquos estate who desires notice of
any order or filing pertaining to the decedentrsquos estate
Descendant (aka Issue) A person descended from another an immediate or more
remote offspring eg a child or grandchild An individual related to an intestate in a
descending lineal line
Descent Succession to a decedentrsquos estate by inheritance rather than by purchase
Devise A gift by will of real or personal property A devise is synonymous with a
bequest or legacy
Devisee A person designated in a will to receive a devise
Directive to Physicians See Health Care Directive
Disclaimer A written statement where an heir or devisee declines to accept an asset
of the estate
Disclaimer Trust A credit shelter trust provided in a decedents will or living trust as
the contingentbeneficiary of the applicable exclusion amount and with its primary
beneficiary being the surviving spouse who can then elect
To keep all or part of decedents gift of the applicable exclusion amount with the
understanding that it will be subject to estate tax at the surviving spouses later death
or
To disclaim all or a part of the gift in which case the disclaimed assets will pass to
decedents contingent beneficiary hisher credit shelter trust which wont be subject to
estate tax at the surviving spouses later death
Discretionary Trust(aka Sprinkling Trust)
A trust that allows its trustee to pay as much trust income or principal or both to the
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
41
beneficiary as the trustee sees fit or according to more defined terms specified in the
trust (eg for hisher health education maintenance and support)
Disinheritance Clause A will clause which specifically omits a gift for anyone not
named in the will
Distributee An heir entitled to a share of an intestate estate
Distribution A division of estate assets pursuant to authority of the court to those
legally entitled to a share of the decedentrsquos estate
Domicile A personrsquos usual place of dwelling and shall be synonymous with
residence [ A person must be domiciled in Hennepin County at the time of death in
order to file probate in Hennepin CountyEvidence of domicile includes registering to
vote using the address as a permanent address etc It is the place the person intends
to return to even when currently residing elsewhere]
Domiciliary Administrator The administrator (Personal Representative) of a
decedentrsquos estate in the state where the decedent was domiciled at the time of death
Donee The recipient of a gift
Donor A person who gives a gift
Duress The threat of harm or use of physical force upon the testator with
the intent to coerce the testator to make a devise contrary to the testatorrsquos free will
E
Elective Share A spousersquos statutory share of a deceased spousersquos estate
Encumbrance A lien or claim such as a mortgage on property
Equitable Interest The interest held by a beneficiary of a trust ie the right to use
or receive property held by the trust according to its terms
Escheat When there are no surviving beneficiaries or heirs the decedentrsquos assets
revert to the state
Estate The whole of the decedentrsquos assets real and personal
Probate estate Assets in the decedentrsquos name alone
Non-probate estate Assets with a named beneficiary ldquo in trust forrdquo designation joint
tenancy ldquopayable on deathrdquo (POD) or ldquotransfer on deathrdquo (TOD) designation
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
42
Estate Tax A federal or state tax imposed at ones death on the transfer of most types
of property
Estate Administration The collection and management of an individuals property
the payment of hisher debts the determination and settlement of any taxes due and
the distribution of hisher assets following hisher death
Execute To complete and sign [generally used with respect to wills] with all
statutorily required formalities such as witnesses or notary acknowledgement a valid
document
ExecutorExecutrix The male or female respectively who is named by the person
making the will to administer the estate This person will collect the property pay any
debt and distribute your property or assets according to the will In Minnesota the
Executor is called the Personal Representative
Executor A person named in a will to administer the testators estate upon hisher
death In Minnesota this is called the Personal Representative Compare Executrix
Contrast Administrator
Executrix A female executor
Exempt Property Estate property which is not subject to probate proceedings
Exemption Trust See Bypass Trust
Exoneration The satisfaction of all indebtedness on a specific gift prior to its transfer
to its beneficiary
Ex Parte
Expert One qualified to testify in court Example Mary Schwartz is qualified as an
expert witness in matters relating to genealogy and heirship
F
Fair Market Value (FMV) The price agreed upon by a willing buyer and a willing
seller for property on the open market
Family Allowance A portion of a decedentrsquos estate set aside by statute for a surviving
spouse children or parents regardless of any testamentary disposition or competing
claims
Family Limited Partnership A partnership into which substantial assets (eg rental
real estate or business) is transferred for the benefit of the individual donor who
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
43
becomes the general partner retaining control (but not all of the title) over the assets
The donorrsquos spouse andor children are limited partners and hold the title to the balance
of the partnershiprsquos interest in the assets
Federal Estate Tax The tax imposed at death on the net fair market value of all
property in which the decedent owned an interest on the date of death Generally in
2004-2006 the first $1500000 of an estate is not subject to federal estate tax
Fee The amount paid for services
Fiduciary A person or institution legally responsible for the management investment
and distributions of funds Examples include trustees executors and administrators
Another name for an executor or personal representative
corporate fiduciary - bank
Foreign Guardian A guardian appointed in another state or country
Formal Probate A court proceeding overseen by a referee or judge to probate a will
andor appoint a personal representative of an estate The administration of a formally
probated estate may be either supervised or unsupervised by the court depending on
the complexity of the estate to be probated and may include determining testacy of the
estate or validity of a will and determination of heirs Less complex and uncontested
probate cases may be filed in front of a court registrar and are termed Informal
Probate
G
Guardian An individual legally appointed to manage the rights andor property of a
person incapable of taking care of his or her own affairs such as a minor or protected
person A person who has been appointed by the court to act on behalf of a wardrsquos
person or property or both In Minnesota language has recently been clarified to
denote a guardian as ldquoof the personrdquo and conservator as ldquoof the estaterdquo
Gift Tax Tax on gifts which is generally paid by the person making the gift rather than
the recipient
Gift-Tax Annual Exclusion The provision in the federal tax law that exempts the first
$10000 (as adjusted for inflation) in present-interest gifts a person gives to each
recipient during a year from federal gift taxes In 2004 the annual exclusion was
$11000
Grantor The person who transfers assets into a trust for the benefit of another
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
44
Grantor Retained Annuity Trust (GRAT) A trust that pays the grantor a fixed
amount for a fixed term of years regardless of the value of the underlying securities
funding the trust When the fixed term ends the trust assets pass to the named trust
beneficiaries
Grantor Retained Interest Trust (GRIT) A trust typically used for transferring high-
value real estate jewelry antiques or valuable art that the grantor would like to
continue to display or to which the grantor wishes to maintain possession The grantor
is permitted to enjoy some use of the transferred assets avoid probate and save
estate taxes
Grantor Retained UniTrust (GRUT) A trust in which the grantorrsquos annuity payment
is a fixed percentage -- in contrast with the fixed dollar amount in a GRAT -- of the
value of the trustrsquos assets for a fixed number of years The grantorrsquos income increases
or decreases as the value of the assets increase or decrease Like the GRAT the trust
assets pass to the named beneficiaries at the end of the fixed term
Gross Estate The total value of your assets owned at death or that are included in
your estate before debts taxes and other expenses or liabilities have been deducted
For federal estate tax purposes the value is determined at the date of death or on an
alternate valuation date six months after death
Guardian The named in a will or appointed by the court to care for a minor or
incompetent person
H
Health Care Directive
HeirHeiress A male (heir) or female (heiress) entitled by law to inherit a portion of
the estate of a person who has died intestate (without a will)
Health Care Directive
Heirs Any individual entitled by law to inherit from another In Minnesota there is an
heirship chart used to determine heirs in the event a person dies intestate or without a
valid will
Holographic Will A will written entirely in a testatorrsquos handwriting
Homestead Property which is set aside for the benefit of specific family members and
which cannot be transferred by the decedent to a third party As long as the homestead
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
45
does not exceed in area or value the limits fixed by law in most states it is exempt
from forced sale for collection of a debt
Homestead Affidavit An affidavit used to transfer title to a marital home which is
community property to a surviving spouse without the need for a probate
I
Incapacitated Person A person who has been determined by the court to lack the
capacity to manage at least some of the property or to meet at least some of the
essential health and safety requirements of such a person
Inherit Receive something from a person (usually after the person is deceased)
Inheritance That which is received from another person upon his death
Inheritance Tax
Inter vivos A type of trust created during ones lifetime to hold property for the benefit
of another person
Interest Any right or ownership in property
Interested Person or Interested Party An heir or devisee or any other person
having a right to or a claim against a deceased personrsquos estate Creditors and the
state as well as state and county agencies in certain circumstances are interested
persons
Intestate The term applied when an individual dies without a will
Intestate Estate Property that is held (1) solely in the name of an intestate person (a
person who dies without a will) or (2) as a tenant in common by an intestate person In
the absence of a will the intestate laws determine who inherits which shares of an
intestate estate
Irrevocable Cant be changed or revoked
Issue All descendants of all generations of a deceased person
J
Joint Ownership The ownership of property by two or more people usually with the
right of survivorship
Joint Property Property owned jointly with another person or persons
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
46
Joint Tenancy with Right of Survivorship A form of ownership by two or more
persons such that upon one owners death the other owner automatically inherits the
entire asset A will provision cannot give the asset to someone other than the joint
owner
Joint Will A single will that is signed by two or more persons (usually spouses) as
their separate wills and is to be probated after the death of each testator Joint wills
are not favored by law and may result in a finding of intestacy by the court They often
result in litigation for breach of contract when the survivor executes a new will following
the first partyrsquos death
Jurisdiction is the authority for a court to act on a matter
K
L
Legatee A person named in a Will this may or may not be a relative of the deceased
person
Letters(Estate) The document issued by the court which gives the personal
representative the authority to act on behalf of the estate Letters Testamentary are
issued in a testate case Letters of General Administration are issued in an intestate
case There are also Letters of Special Administration (for the appointment of a Special
Administrator Letters of Successor Personal Representative etc)
Letters (Guardianship) The document issued by the court which gives the guardian or
conservator the authority to act on behalf of the ward or conservatee or other protected
person
Liabilities What is owed to others all debts and mortgages
Life insurance trust A trust funded from the monies provided from life insurance
Liquid assets Cash coin and anything that can be quickly and easily converted to
cash
Living Trust A revocable trust established by a grantor during his or her lifetime in
which the grantor transfers some or all of his or her property into the trust
Living Will A legal documentwhich is signed and witnessed indicating the personrsquos
wishesthat in the event of a terminal illness or debilitating accident the personrsquos life is
not to be prolonged by artificial means
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
47
M
Marital Deduction A deduction allowing for the unlimited transfer of any or all property
from one spouse to the other generally free of federal estate and gift tax
Minor A person under 18 years of age
N
Notarization is the attestation by a Notary Public that a document was signed under
oath and that the person whose signature appears on the document is that person
Notaries must be authorized by the State of Minnesota to act in this capacity To
notarize is the act of the notary attesting to the signature and affixing the notaryrsquos
signature and seal to the document
Notary A person with a state commission to attest to the validity of the signatures on
documents
Notice or giving notice is a written announcement to persons entitled to know what has
transpired or will transpire in a case When personal representatives comply with notice
requirements they give interested persons information about what is happening in the
case and protect the estate (and themselves) from claims that proper procedures were
not followed Generally notice should be sent to
(a) all the heirs or devisees of an estate
(b) persons who have or may have an interest in the estate of the decedent
(c) anyone who asks for notice and
(d) anyone who has filed a demand for notice
O
Oath A solemn affirmation to tell the truth
Order The document signed by the judge or other officer of the court making findings
that the requirements of the probate code have been met and entering a will into
probate andor appointing a personal representative The Order usually also stipulates
that letters be issued upon qualification and acceptance It is not the Order that gives
the personal representative the authority to act but the issuance of the Letters A
probate judge may also need to sign orders concerning other matters that arise in the
case
P
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
48
Personal Effects Personal belongings (such as clothing pictures mementos)
personal effects may have little value as assets but may be important to relatives
Personal Property Any property that is not real (land) property Examples include
bank accounts stocks bonds insurance policies pension plans jewelry furniture and
motor vehicles Tangible personal property is property that can be touched (such as
jewelry and sporting equipment)
Personal Representative The person responsible for administering an estate
Sometimes referred to as an executor or administrator the Personal Representative is
the person appointed by the court to administer the estate of the decedent by giving
notice of hisher appointment paying claims of the estate and then distributing the
estate according to the will or to the heirs if there is no will A Personal Representative
appointed in either a formal or an informal proceeding generally has the authority to do
almost anything the decedent could have done with hisher property during hisher
lifetime
Per Stirpes The method of distributing assets of an estate to beneficiaries who take
by right of representation the share that a predeceased ancestor was entitled to
Petition A written request to the court for an order
Plenary Guardian Full entire complete Guardianship
Pre-need Guardian A person named in a written declaration to serve as guardian in
the event of the incapacity of the declarant
Pour-Over Will A will that transfers property to a pre-existing trust at the death of
the testator
Power of Attorney is a signed document that authorizes another person on someones
behalf A power of attorney expires upon the death of the person who granted the
power of attorney The fact that a person had power of attorney does not give that
person priority for appointment as personal representative
Powers of Appointment A right given to another in a written instrument such as a will
or trust that allows the other to decide how to distribute the property The power of
appointment is general if it places no restrictions on whom the distributees may be A
power is limited or special if it limits the eventual distributee
Pre-nuptial agreement An agreement specifying ownership rights of assets
executed prior to the marriage or nuptials
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
49
Probate The court process of settling an estate (the probate estate) of a deceased
person and transferring property to the heirs or beneficiaries of the estate
Probate Code The body of law within the Minnesota statutes that governs the estates
of deceased persons The probate code also deals with the administration of trusts and
the protection of minors and persons under disability
Probate of Will Means all steps necessary to establish the validity of a will and to
admit a will to probate
Pro bono Latin phrase for work or services done or performed by an attorney free of
charge
Pro Se Latin phrase for acting without an attorney representing onersquos self
Protected Person A person who is under a guardianrsquos charge or protection
Q
Qualified Personal Residence Trust (QPRT) A trust used by a grantor to transfer
his or her primary or secondary residence into an irrevocable trust retaining the right
to use the residence for a term of years at the conclusion of which the trust terminates
and the residence passes to the remainder beneficiaries A QPRT permits the grantor to
leverage the unified credit exemption
Qualified Terminable Interest Property Trust (QTIP) A trust for the benefit of a
spouse that is designed to qualify for the marital deduction The trust pays all income to
the spouse at least annually and no principal may pass to anyone other than the spouse
during his or her lifetime At the death of the spouse the QTIP trust assets are included
in calculating the estate tax on the spousersquos estate
R
Real property All real estate including land fixed improvements (buildings) and
growing things thereon excludes personal property
Rescind To cancel revoke terminate
Residue What is left of an estate after all bequests have been made
Residuary Devise A devise of the assets of the estate which remain after the
provision for any devise which is to be satisfied by reference to a specific property or
type of property fund sum or statutory amount
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
50
Residuary Estate The estate that remains after all specific bequests are made
Revocable Capable of being changed or revoked
Revocation A) The act of withdrawal or recall of some power B) Making void a will
Revoked Refers to a will or other document that the decedent has cancelled If a will
is revoked it has no effect
Right of survivorship Permitting property to bypass probate procedures this right
of a joint property owner provides that in the event of death the surviving joint owner
receives ownership in full
S
Seal A notary seal or a stamp seal of the court etc which proves the authenticity of
a document A court seal embosses or raises the paper so that it can be felt by touch
for authenticity
Self-Proved Will A will in which at least two witnesses took an oath included in the
will at the time the will was signed and in which both the witnessesrsquo and the
decedentrsquos signatures were notarized by a qualified notary public
Separate property Property that is not community property
Share the part of an estate which an heir will receive The number of shares is not
the same as the number of heirs as some heirs may receive only part of a share When
heirs are not all related in the same way some may receive shares by representation
The laws are different in each state as to how shares are determined
Sibling A brother or a sister
Specific Bequest see bequest
Subpoena A document ordering an individual to appear in court and give testimony
Sui Juris Of full age and capacity
Summary Administration Administration used if assets are under $20000
Surety Bond Obligation of a guarantor(bonding company) to pay the estate upon
failure of a fiduciary to perform hisher statutory duties owed to the estate
T
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
51
Tenancy in Common A form of ownership by two or more persons such that when
one owner dies that persons will (or if there is no will the intestate laws) determines
who inherits that joint tenants interest in the asset
Tenancy by the Entirety A form of ownership of real property between a husband
and wife so that at one spousersquos death the other spouse automatically inherits the
decedentrsquos interest Conceptually you can think of this as the marriage owning the real
property This form of ownership provides certain protections against creditors that are
not available with other forms of ownership
Testament Another name for a will a testament is a document that deals with the
disposition of ones property upon death
Testamentary Trust A trust that is created upon death by the terms of a persons will
Testate Having left a valid will at death
Testator An individual who dies leaving a will or testament in force A person who
makes a valid will
Trust A written legal instrument created by a grantor during his or her lifetime or at
death for the benefit of another An arrangement where a person (known as a
trustee) holds and manages the property of another person (who is known as the trust
beneficiary)
Trustee The person or bank that holds manages and distributes trust property
pursuant to the terms of a trust A co-trustee serves as trustee with another A
contingent trustee becomes trustee upon the occurrence of a specified future event
U
Unified Credit A federal tax credit that offsets gift-tax and estate-tax liability The
cumulative amount of property that can be transferred during lifetime and at death
before any federal gift or estate tax will be payable Under the tax code the unified
credit is expressed in terms of a credit against taxes For practical purposes this means
that in 2004 and 2005 each person can pass up to $1500000 free of federal estate
tax This increases to $2000000 in 2006 and to $3500000 in 2009 The tax is
repealed in 2010 and returns at the 2002 level for deaths occurring in 2011 and
thereafter The tax rates start at 37 and are capped at 50 The rates gradually drop
to 45 in 2007-2009 The taxes must be paid in cash generally within 9 months after
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
52
your death
V
W
Waiver The voluntary relinquishment of a privilege or a right
Ward A person who is under a guardianrsquos charge or protection
Will A legally executed document that directs how and to whom a persons property is
to be distributed after death Also called a testament a will is a document that deals
with the disposition of ones property upon death Wills generally cannot dispose of
property held as tenants by the entirety joint tenants with rights of survivorship or
retirement plan benefits or life insurance proceeds (unless made payable to the estate)
The person who has a will is a testator
Witness As it pertains to a will a person who is present at the time the other
witnesses the notary and the testator are all also present in his or her company and
with proof of identification signs the will and watches all the others signing at the same
time
X
Y
Z
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
53
CASE LAWSTATUTES PATERNITY
Minn Stat Ann sect 25757 Subd 3 Action regarding child with no presumed father under section 25755 An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 25755 may be brought by the child the mother or personal representative of the child the public authority chargeable by law with the support of the child the personal representative or a parent of the mother if the mother has died or is a minor a man alleged or alleging himself to be the father or the personal representative or a parent of the alleged father if the alleged father has died or is a minor In re Estate of Palmer 658 NW2d 197 (Minn 2003) Probate Code section governing determination of intestate succession permitted rather than required that parentage in probate proceeding be determined in accordance with dictates of Parentage Act and its time limitation on bringing actions to determine paternity and parentage could also be established by clear and convincing evidence Probate Code stated parent and child relationship ldquomayrdquo be established through Parentage Act explicitly providing that Parentage Act was not exclusive means of determining parentage for purposes of intestate succession MSA sectsect 25751 25774 5242ndash114
Voss v Duerscherl 425 NW2d 828 (Minn 1988) Paternity action did not survive as against father and siblings of deceased putative father accordingly they were not proper parties to paternity action and could not properly have been ordered to submit to blood testing MSA sect 57301
CHILD SUPPORT
In re Estate of McCarthy No A08-1581 2009 WL 2926310 (Minn Ct App Sept 15 2009) The trial court did not err when it determined that the claim of a disabled son for child support against his fathers estate was barred The plain language of the statute stated that if there is a written order expressly stating that child support terminates on the death of the obligor the child-support obligation terminates on the death of the parent The child-support order in the divorce decree explicitly stated that the obligation would terminate upon the death of the father
Huft v Huft No C8-02-1986 2003 WL 21525042 at 3 (Minn Ct App July 8 2003) Pursuant to MinnStat sect 51864 subd 4 ldquodeath of a parent obligated to support the childrdquo does not terminate the provisions for child support in the judgment By statute an ldquoobligorrdquo is defined as a person obligated to pay maintenance or support A person who is designated as the sole physical custodian of a child is presumed not to be an obligor MinnStat sect 51854 subd 8 (2002) Therefore a district court ldquohas the power to order a child support obligor to obtain or maintain life insurance to secure child support paymentsrdquo Emerick on Behalf of Howley v Sanchez 547 NW2d 109 112 (MinnApp1996)
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
54
Berg v DDM App1999 603 NW2d 361 review denied District court has discretion to decline to impose an additional obligation for past child support on a deceased parents estate to the extent it is just and appropriate under the circumstances Peevy v Mut Servs Cas Ins Co 346 NW2d 120 122-23 (Minn 1984) In addition MinnStat sect 51864 subd 3 (1982) provides that ldquothe obligation to pay 123 future maintenance is terminated upon the death of either party rdquo Respondent argues that because appellants right to maintenance payments terminated at the time of Paul Peevys death her dependency did not survive The statutory provision of survivors economic loss benefits for ldquosurviving dependentsrdquo does not necessarily require the survival of a legal right to support but simply requires that a dependent person live beyond the death of a person covered by no-fault insurance In contrast to the termination of the maintenance obligation upon the death of a spouse a child support obligation continues after the death of the parent MinnStat sect 51864 subd 3 (1982) These provisions may reflect a legislative determination that an ex-spouse loses status as one entitled to support while a child retains that status because of a greater need On the other hand the legislature may have recognized that most ex-spouses would not be a ldquonatural object of decedents bountyrdquo and therefore a decedents estate should not be burdened by that obligation while a child support obligation would more likely be a payment that a decedent would choose to make
CUSTODYPARENTING TIME 257C08 Rights of visitation to unmarried persons Subdivision 1 If parent is deceased If a parent of an unmarried minor child is deceased the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application
See statute for remaining provisions In re Custody of NAK 649 NW2d 166 (Minn 2002) Following the death of a custodial parent a surviving noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require that the surviving parent be denied custody
Wilson v Barnet 275 Minn 32 34 144 NW2d 700 702 (1966) In Kienlen v Kienlen 277 Minn 137 139 34 NW2d 351 353 we held that upon the death of the custodial parent the right to custody automatically inures to the surviving parent unless he is unfit or it is contrary to the best interests of the child3 We there observed that the natural rights of the father are not completely annulled by a divorce decree which awards custody to the mother but are merely suspended and are revived in full force by the mothers death at which time the father has the first and paramount right to the childs custody
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
55
In re Custody of ALR 830 NW2d 163 168 (Minn Ct App 2013) Background Paternal grandparents filed for sole legal and sole physical custody of out of wedlock child We conclude that the parental presumption articulated in the common law is incorporated into chapter 257C for two reasons First NAK a third-party custody case that the Minnesota Supreme Court decided under pre-chapter 257C law discusses the common law parental presumption at length See 649 NW2d at 174ndash77 However four years later the supreme court decided LewisndashMiller which addressed whether to hold an evidentiary hearing in a third-party custody dispute under chapter 257C and made only a very limited reference to NAK 710 NW2d at 568 Although LewisndashMiller addressed different circumstances the common law parental presumption that was discussed extensively in NAK was conspicuously absent from the supreme courts post-chapter 257C LewisndashMiller decision Second and more importantly there is a striking similarity between what the common law parental presumption required a third party to show in order to obtain custody of a child and what chapter 257C requires an interested third party to show to gain custody of a child Under the common law parental presumption it was presumed that custody of a child would go to the parent unless the parent was unfit abandoned the child ldquoor unless there are some extraordinary circumstances which would require that [the parent] be deprived of custodyrdquo NAK 649 NW2d at 174 (emphasis and quotation omitted) Thus a third party could overcome the presumption favoring parental custody if the parent was unfit had abandoned the child or if ldquoextraordinary circumstancesrdquo existed that required that the child not be placed in the parents custody Similarly under chapter 257C a third party can obtain custody of a child by following specific steps which require the petitioner to demonstrate by clear and convincing evidence that the parent has abandoned neglected or somehow harmed the child or that placement with the third party takes priority over preserving the childs day-to-day relationship with a parent due to physical or emotional danger to the child or if other extraordinary circumstances exist MinnStat sect 257C03 subd 7(a)(1)
In re IAE No A12-0775 2012 WL 6652621 at 4 (Minn Ct App Dec 24 2012
Concurrently with this long history of protecting the interests of children only the showing of a high level of proof of conflicting interests of the child permits interference with the presumptive rights of the natural parent Appropriate to the circumstances of the immediate case the supreme court has determined that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless parental abandonment or unfitness is found in an appropriate proceeding or that irrespective of parental fitness ldquoexceptional circumstancesrdquo indicate that the best interests of the child clearly require that the surviving parent be denied custody Hohmann v Walch 255 Minn 165 168ndash69 95 NW2d 643 646ndash47 (1959) These standards closely resemble the stated interested-third-party standards of MinnStat sect 257C03 subd 7
In re Minor Child ESJL No A06-784 2007 WL 152281 at 5 (Minn Ct App Jan 23 2007) It is clear from the language of the 2003 custody order that appellants legal custody rights were derived from SCMs rights The district court was correct in stating that ldquo[appellants] do not inherit their sons rights upon his death [the] Order terminated due to the death of [SCM]rdquo1
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him
Page
56
Consequently as a result of their sons death appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody
Following the death of SCM the 2003 custody order ceased to exist whereby respondent consented to the minors continued residence with appellants for a time being but revoked consent by removing the minor from appellants residence We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondents consent of the minors residence with appellants
In re Children of NM No A05-794 2005 WL 3159842 at 4 (Minn Ct App Nov 29 2005) There is a presumption in favor of a noncustodial parent upon the custodial parents death or relinquishment of any claim to a childs physical custody See In re NAK 649 NW2d 166 175 (Minn2002) The noncustodial parent is entitled to custody of a minor child unless there are ldquograve and weightyrdquo reasons to separate the child from his or her natural parents Id PARENTAL FEE Wolter v Dept of Human Servs No A06-1139 2007 WL 1470437 at 1 (Minn Ct App May 22 2007) After their mothers death in 2005 Wolter did not seek physical custody and his daughters were transferred to separate out-of-home placements Because of their medical condition Wolters daughters qualify for medical-assistance services from the state The program they participated in that is relevant to Wolters appeal allowed them to receive services while minors regardless of their parents income But the program requires parents to contribute to the cost of services through a monthly parental fee Wolter challenges the calculation of his parental fee for the 2002 2003 and 2004 fiscal years arguing that he is statutorily entitled to a reduced fee because his daughters received in-home care even though this care was not provided in his home
Note In the above case Wolterrsquos appeal was denied He was not given the ldquocustodial parentrdquo reduce fee as the child did not live with him