Probate, Guardianship, And Conservatorship

Anoka Probate, Guardianship, & Conservatorship Lawyers

The Probate Process

Probate is a court process that takes place after a person dies. Probate is started by filing a petition or application with the court that requests the appointment of a personal representative. A quick definition of probate is the court determining how assets should be distributed among the interested parties. It establishes the validity of a will or determines the legal heirs who should inherit the property.

Probate is also intended to accomplish the following:

  • Identify and inventory the deceased person's property
  • Appraise the property
  • Pay outstanding debts and taxes
  • Distribute the remaining property as the will prescribes
  • If there is no will, distribute the remaining property according to state law

What is not mentioned above is that there are also court and attorney fees to be paid. If the will lists beneficiaries intended to receive property from the deceased person’s estate, those proceeds are diminished by the court fees and attorney fees. There may also be accounting fees, appraisal fees, business valuation fees, and bond fees.

There may be miscellaneous fees, too. Some examples of the possible miscellaneous fees include:

  • Postage for mailing notices to family members, interested persons regarding possible debts owed by the deceased, and government authorities regarding possible taxes or other claims due
  • The insuring and storing of personal property
  • Cost of shipping personal property
  • Mortgage payments owed by the deceased
  • Insurance payments owed by the deceased
  • Upkeep on the decedent's property, such as lawn care and house repairs
  • Utilities relating to the decedent’s real estate

These fees can amount to thousands of dollars. The estate is responsible for all fees and costs.

The personal representative appointed to administer the estate needs to pay to open the probate, and the assets from the estate are not available until the probate is opened. The personal representative cannot even be appointed until the probate is opened, so the cost of opening the probate must be paid with funds other than from the estate. It can be a catch 22.

There are two types of probate, informal and formal:

  • Informal probate: In less complicated situations, an informal application can be filed with the court requesting the appointment of a personal representative. No hearing in front of the judge is necessary.
  • Formal probate: In more complicated situations, a formal petition is filed, asking the court to appoint a personal representative with a hearing before the judge.

A formal probate requires the filing of a petition before a District Court Judge and is appropriate under any of the circumstances for which an informal probate application can be denied.

The application for informal probate can be rejected for any reason, including the following:

  • The estate owes more money than is in the estate
  • Interested parties cannot be located
  • The original will is missing
  • Heirs and others have disagreements
  • The will is unclear
  • Either the will needs to be verified or it is being contested
  • Supervision of the estate requires complex administrative procedures

If the application is accepted and the probate is fully administered, then the personal representative can take the necessary steps to close the estate.

When probate is necessary, the best course of action is to talk to a lawyer. The death of a loved one is stressful enough without the added complications of notifying family and friends, interpreting a will, and trying to figure out what comes next. The lawyers at Bolt Hoffer Boyd Law Firm can be your trusted and professional guides through the entire process, ensuring that all of the deadlines, filing requirements, and specific procedures are met and fulfilled.

Providing Guidance Throughout Your Case

Call our experienced probate lawyers at Bolt Hoffer Boyd for compassionate and professional support particular to your situation.

Guardianship & Conservatorship

There may come the time when someone you love needs special care and attention to personal affairs. A court appoints a guardian or a conservator depending on what type of decisions need to be made for the protected person, ward, or conservatee.

Guardianship

Wards are minors or incapacitated adults who lack sufficient fitness or capability to make or communicate responsible personal decisions, and for whom the court appoints a guardian. The guardian is authorized to make decisions for the ward on matters such as where to live, medical decisions, education, training, and more.

A guardian must assure that provisions have been made for the ward’s care and comfort. This includes food, social requirements, and health care. If possible, the guardian should meet these needs through government programs, rather than using the ward’s estate.

Guardians must respect the ward’s moral and religious beliefs when enabling the ward to receive necessary medical and professional care. They also have to take reasonable care of the ward’s personal effects, like clothing, furniture, etc.

On at least an annual basis, the guardian must file a report with the court describing the ward’s wellbeing. This report must contain the ward’s current mental, physical, and social condition. The living arrangements and all addresses of the ward covering the period of the report must be accounted for. In addition, all services, including medical, educational, and vocational, must be reported. Finally, the guardian must provide a recommendation as to whether the guardianship should continue.

Conservatorship

The conservatee or protected person is the legal name for a person for whom a conservator has been appointed because they lack the capacity or ability to make necessary decisions regarding their financial affairs or estate.

The nomination of a conservator, or conservatorship planning, involves a document (like a will) that names the person you (the protected person) want as your conservator. The document can also spell out how the conservatee wants financial matters managed by the conservator. Since conservatorships are subject to court supervision, having an attorney represent your interests is an added safeguard for the conservatee’s property.

The conservator is required to provide an inventory of the conservatee’s estate within 60 days after being appointed. The conservatee’s estate includes real estate, furniture, clothing, mortgages, debts or notes, bonds, and any other property. Since the conservator must file an inventory of the conservatee’s property with accounting and other reports to the court annually, the conservatorship offers a high degree of protection to the conservatee.

Conservatorships are not without disadvantages, however. They are time-consuming and expensive. As indicated, the conservator must keep detailed records and file papers with the court regularly. Conservatorships often require court hearings and the continued assistance of an attorney.

The support, maintenance, and education of a conservatee are paid for by the conservator, using government benefits when available. The conservator pays the conservatee’s debts and manages the conservatee’s estate. The conservator must sometimes post a bond that serves as a guarantee that the conservator will discharge their duties faithfully. The court may also require that certain transactions must be approved before the conservator may act, such as selling real estate or entering into unconventional investments.

Alternatives to a Conservatorship or Guardianship

A competent person may establish a revocable living trust and avoid the need to appoint a conservator of their estate. The appointed trustee would assume management of the financial affairs upon the trustor’s incapacity.

A durable power of attorney is a document delegating power to an agent to make financial transactions. Again, the person must be competent to execute a durable power of attorney, and the agent is not subject to court review.

A person may nominate an agent to make health care decisions on the person’s behalf using a health care directive. Such a directive can include a provision allowing for the suspension or continuation of life support treatment. Specific instructions as to health care may also be provided in the directive. As with the living trust and durable power of attorney, the person must be competent to execute a health care directive.

If you or someone you love is unable to meet personal needs for medical care or financial decisions and investigating a guardianship or conservatorship would be a reasonable consideration, get your questions about the process answered by calling (763) 292-2102 for a free consultation with our skilled lawyers at Bolt Hoffer Boyd Law Firm.

FAQs

  • What Is Probate?

    Probate is the process of administering the estate of a deceased person. The probate process has a few general purposes. The first is to determine how the assets of the estate will be distributed, or who will get what. The second is to resolve issues with any outstanding creditors of the deceased person. We act as a guide in helping families navigate the probate process.

  • What Is the Difference Between “Probate” & “Non-Probate” Assets?

    Non-probate assets are assets that you have made a separate plan for upon your death. Assets with proper beneficiary designations, transfer on death designations, or payable on death designations are considered non-probate assets. In addition, assets that are properly transferred into a trust are considered non-probate assets. Probate assets are any assets that are left over and will either pass according to your will, if you have one, or under Minnesota statutes, if you don’t.

  • Do I Need to Go Through Probate?

    Some estates have to go through probate, and some do not. Whether your estate will have to go through probate depends on the assets involved. If you have over a certain amount of probate assets, your estate will have to go through probate. In addition, if you own real estate that is considered a probate asset, your estate will have to go through probate, regardless of the equity in the real estate. If you need help determining whether probate is necessary for you, please contact us.

  • How Do I Begin to Probate an Estate?

    The probate process is initiated by filing a petition in the county in which the deceased person resided or owned real estate. Generally, this petition must be filed within three years of the date of death; however, probate is oftentimes initiated much sooner to protect the assets in the estate and get the property to the heirs. We work with personal representatives across Minnesota to help them file probate in several counties, including but not limited to:
    • Anoka County
    • Hennepin County
    • Sherburne County
    • Isanti County
    • Wright County
    • Ramsey County
    • Washington County
    Our probate practice group provides a step-by-step approach to help personal representatives successfully initiate and complete the probate process.

  • Who Is the Personal Representative?

    The role of personal representative can be predetermined by the deceased person or may be chosen by the courts. Oftentimes, the personal representative is appointed in a will. If there is no will in place, any interested party can petition the court to be appointed as personal representative, and the court will determine who the personal representative should be.

  • Q:What Does a Personal Representative Do?

    A:A personal representative, formerly referred to as an administrator or executor, is in charge of administering the estate and following through on the written wishes of the deceased person. A personal representative will create an inventory of the estate assets and document all transactions involving the estate. A large part of the job of the personal representative is to transfer the assets from the deceased person to their heirs. It is important for a personal representative to work with an attorney to make sure the probate process is handled properly.

  • Q:What Is the Difference Between Formal & Informal Probate?

    A:Minnesota provides for both a formal and informal probate process. The formal probate process has a greater level of court involvement. The informal probate process has less court involvement and is paperwork driven. Often, the informal probate process will not even involve a court appearance. The formal probate process is preferred in the following circumstances:
    • Distribution to a minor beneficiary
    • Unknown heirs or creditors
    • Questions surrounding the will or trust
    • Complicated family situations
    • The original will cannot be found
    • Other issues with the will
    • An insolvent estate
    We work with personal representatives to determine whether formal or informal probate is the proper course of action.

  • Q:How Long Does Probate Generally Take?

    A:The probate process generally takes six months to a year. Depending on the complexity of the estate, this process can take much longer — sometimes even several years. Because probate is lengthy, it is important to get the probate process started right away to prevent unnecessary delays.

  • Q:How Much Does Probate Cost?

    A:Between filing fees, publication costs, and attorney fees, the probate process generally costs several thousand dollars. These costs will increase greatly with a complicated estate or contesting family members.

  • Q:Do I Need to Pay Estate Taxes with Probate?

    A:Probate and estate taxes are two separate issues. Probate does not determine whether you will pay estate taxes at the state or federal level. Whether you owe estate taxes upon your death depends solely on the value of your estate. 

  • Q:Do I Need an Attorney to Navigate Probate?

    A:While it is possible to navigate the probate process on your own, some cases may require the assistance of a knowledgeable probate attorney to properly probate the estate. Some small estates do not need to pass through the Minnesota probate process. Rather, they can be transferred via a small estate affidavit. While it can still be worthwhile to consult an attorney, you may be able to transfer the estate without legal help. With larger estates, especially those with real estate, it is wise to discuss probate with a lawyer who understands the process and can ensure your rights are protected every step of the way. Generally speaking, the more complex the situation, the more beneficial it is to work with a probate attorney. However, there are numerous benefits to hiring a lawyer even in seemingly simple or informal probate matters.

  • Q:Who Pays for Probate?

    A:In most cases, probate and associated probate costs are paid by the estate. In other words, the personal representative (or “executor”) of the estate is responsible for paying bills and related costs in the “proper fashion.” There is a specific order of priority that must be followed in Minnesota, beginning with costs associated with administering the estate, such as court costs and attorney fees, followed by funeral expenses, federal taxes and outstanding debts, reasonable and necessary medical expenses, state taxes and outstanding debts, and, lastly, all other claims against the estate. For more information, contact our probate attorneys at Bolt Hoffer Boyd Law Firm today for a free consultation.

Probate, Guardianship & Conservatorship Attorneys

    From the start of working with Bolt Hoffer Boyd Law Firm, I could tell this firm was the right fit: professional, knowledgeable, and supportive.

    I have taught for 23 years at a college in the community and have found that Steve Helseth has the heart of a teacher as I always leave his office with all of my questions answered and with a full understanding of the law and all of my options.

    He was responsive to phone calls and e-mails, clear in his instructions, and kept me informed of the nuances of probate and my father’s will in particular, including setting up a trust for my niece. I highly recommend [Steve Helseth].

    Steve Helseth and his team provided seamless legal assistance through the estate process with the county (Douglas) in west-central Minnesota.

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