LAW BLOG

Technology has made life and business simpler by its ease of use and accessibility. Banking, paying bills, business communications, and ability to quickly look up medical or legal facts are all made easier through technology. Many people see advertisements for online legal services and wonder if this could speed up or simplify their legal process. We live in the age of information and there is no shortage of websites online offering quick fixes for business forms and legal products.  But do you know what you are getting? A good estate plan (Last Will and Testament, Power of Attorney, Healthcare Directive) is like insurance. Until the need arises, most people are unaware of exactly what their policy provides. Unfortunately, many will not know the quality of their “do it yourself” legal products, because the problems do not arise until after their death.

One might be tempted by the allure of a product that comes with promises of quick, easy, and cheap legal work. It is enticing to avoid hiring a lawyer. But, one basic truth resonates: you get what you pay for. For example, each state has specific laws, and every family has its own unique composition and issues that need consideration in an estate plan. An online form is unable to accommodate these needs.

In Minnesota, it is actually not difficult to execute a legally valid Will as there are three basic elements: (1) the Will must be typed, (2) the Will must be signed by the person making the Will, and (3) the Will must be notarized and signed by two witnesses present during the signing of the Will.  Any adult with a sound mind may make a Will, if the above requirements are met. A handwritten note, however, stating who gets what (holographic Will) is not valid in Minnesota.

As an attorney, I have reviewed form processed Wills that have failed to meet even the aforementioned requirements.  However, even if the Will is legally valid by meeting the minimum requirements, drafting your own Will is risky because it is likely not to provide what you want it to provide.  Legalese is a different language than English. Even the finished product from an online form company will be formal and almost entirely legalese.  You may be taking a significant risk by assuming you understand a certain word or phrase.  In fact, Forbes recently reported that some have accidentally disinherited children by not understanding legal phrases and choosing the wrong language through online forms.  Drafting a Will with a licensed attorney can give you the peace of mind that you did not misapply legal words and phrases.  It is the job of an attorney to know those words and phrases and apply them appropriately.

As an example, in our office, clients fill in the blanks of an estate planning document to give us an idea of what the client wants.  More often than not, clients unintentionally make mistakes in selecting language that would result in the opposite unintended result.  It is the attorney’s responsibility to choose the proper language that meets the needs of the client.

If the mistakes are not discovered until the need arises, it is too late.  Ineffective legal documents usually results in expensive litigation. If you have an inadequate estate plan, the problems are passed onto loved ones and the Court to decipher your wishes. Before you consider doing it yourself entirely on your own or through the latest online legal services, at a minimum, speak with a licensed attorney to ensure that your intentions are properly understood and carried out in your estate plan.

*** UPDATE ***

Ohio High Court questions whether use of forms by non lawyers should be considered unauthorized practice of law.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

The short answer to this question is that you lose control and Minnesota determines what happens to the property that you left behind (your “Estate”). In Minnesota, if you die without a Will your property will be divided and distributed to those family members that Minnesota indicates are legal family members and entitled to a share of your property (legal term is “Intestate Succession”). With the dynamic nature of the modern family, you may not agree with the way Minnesota defines your family and distributes your property.

Your family arrangement may not fit within any of the examples below, and if so, the only way to guarantee that your family members receive what you want them to receive is through a Will.

If you are married and have no children previous to or outside of your marriage, your surviving spouse inherits your estate. If you have children but never got married, your children inherit all property in your estate. If you were never married and have no children, your parents inherit your estate. If you have no spouse, children and your parents are not alive, surviving siblings inherit all of your estate in equal shares. Those are some of the “easy” scenarios. Where it becomes difficult is when you have children from a previous marriage or your spouse has children from a previous marriage.

If you are married at the time of death, Minnesota law generally dictates that the surviving spouse receives everything. However, if you and your spouse had children apart from each other, then the surviving spouse would receive the first $150,000.00, plus one-half of the rest of the estate. So, for example, if all of your property is worth less than $150,000.00, then your surviving spouse would receive everything and any children from a previous marriage would receive nothing. If your estate is worth more than $150,000.00, after the spouse receives his/her share, children from another relationship would inherit all that remains in the estate.

For children to inherit from you without a Will, they must be considered your children under Minnesota law. Any children legally adopted are regarded the same as biological children. If you have a stepchild that you have not adopted, that child will likely not receive a share of your estate. If you gave a child up for adoption to another family, that child will not receive a share of your estate. Grandchildren do not receive any of your property unless that grandchild’s parent did not survive you. In that case, the grandchildren would receive equal disbursements of their parents share.

If no heirs are determined, the entire estate goes to the State of Minnesota.

That is just a snapshot of what happens to your estate if you die without a Will. If you want control of what happens and do not want Minnesota to dictate what happens to your estate, then you should not neglect to have a legally valid Will drafted by a licensed attorney.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

If you own land in Minnesota, land ownership is recorded in the County in which the real estate is located by either the County Recorder’s office through the Abstract system or the County Registrar of Titles through the Torrens system.  Most landowners, if asked whether they have an Abstract of Title or a Certificate of Title for their property, may not know one way or the other.  The Abstract system and the Registered Torrens system essentially serve the same purpose: to keep track of land ownership. Both systems are adequate in identifying ownership. Yet, there are significant differences between the two systems that impact the rights of a landowner.

The most common is the Abstract system. When an owner of Abstract property conveys title to property, mortgages, or does anything that affects title, a document is filed with the County Recorder. When Abstract property is sold, a title company will typically update the Abstract of Title, which is a record documenting the history of land ownership.  Abstracts account for the very first conveyance of the property, sometimes all the way back to the time when the United States government issued a land patent.  To the learned and professional eye, the Abstract should reveal any liens and encumbrances as well as ownership of the property.

The other less common form of keeping track of land ownership in Minnesota is called the Torrens system.  An Abstract of Title is not necessary in the Torrens system, and the land owner holds a Certificate of Title that simply lists the land owner and current encumbrances.So what’s the big deal?  Why should anyone care whether their land is Abstract or Torrens?

Under the statutory law in Minnesota, a land owner of Torrens property is assured that no one else has any claim to the property. The Certificate of Title is automatically deemed to be accurate and irrefutable. Again, rather than a confusing historical chronological listing of all property owners and mortgages which is often the case with an Abstract of Title, a Certificate of Title very simply lists the owner and liens or encumbrances known at the time of conveyance of title.  In that sense, Torrens title is similar to the title to a motor vehicle.

Once property is registered Torrens no one may gain adverse possession or prescriptive easement rights against the title.  With Abstract property, it is possible to lose title to your land due to a hostile takeover from a neighbor through adverse possession.  Adverse possession, also commonly known as “squatter’s rights”, is a legal remedy that, if certain legal standards are met, allows someone other than the owner to acquire title to the owner’s land.  In addition to the protections against adverse possession, Torrens property also shields your property from any claim of prescriptive easement rights.

Similar to adverse possession, under certain circumstances another person using your land could also obtain a prescriptive easement.  The main difference is that with adverse possession the record owner loses title whereas with a prescriptive easement the owner retains title to the land but it becomes burdened by the easement.  This is particularly important for lake properties.  For example, a neighbor claiming that he or she has continuously stored his or her dock on your property during the winter months for more than 15 years could be awarded prescriptive easement rights by the Court that run with the land (allowing future owners to continue such use of your property).  A prescriptive easement claim could prevail with Abstract property; on the other hand, such a claim could not be successfully made against Torrens property.

If there is any concern that a neighbor may attempt to acquire title or prescriptive easement rights to your land by simply using it, registering your land as Torrens is one preventative measure that may, at the same time, avoid a potential land dispute with your neighbor.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.

When a loved one passes, the last thing any person wants to think of is legal matters and attorneys. Unfortunately, in the midst of the grieving process certain matters must be taken care of and the property of the deceased must be properly distributed. If given the choice, most would prefer to handle these matters on their own, but it is often necessary to involve the Probate Court to receive permission from a Judge to transfer a decedent’s property.

Probate Court is a division of the Minnesota District Civil Court system that handles the legal process of settling an estate after a person has died. Now, having to receive the blessing of the Court is not the end of the world by any means, but the process can take a lot of time, effort, and money. It may or may not be necessary to involve the Court to handle the distribution of a person’s estate. Generally speaking, whether probate is necessary depends on how assets are titled and held at the time of death and probate is often necessary when personal assets exceed $50,000.00 and real property is owned individually or as a common tenant by the deceased.

The probate process begins simply with the filing of a preliminary petition with the Court requesting that the Court appoint a Personal Representative to represent the decedent’s estate. The Personal Representative’s duty, along with his or her attorney, is to take the laboring oar to collect all property owned by the decedent, create an inventory, obtain appraisals of assets, take measures to protect those assets, pay debts, and distribute the remaining assets to the proper beneficiaries as directed by the estate plan of decedent and by the law. The Probate Court oversees the process and will issue an order authorizing what ultimately will happen to the property of the decedent.

Many factors can affect how long the probate process will take. There may be intricate family arrangements to take into consideration, disputes between family members, and potential legal issues. Some estates settle fairly quickly and others can drag on for years. Also, depending on the situation, it is possible that Court fees and attorney bills can rapidly accumulate. These costs will reduce the assets owned by the estate because the estate of the deceased must pay all fees before distribution of the remaining property. So, again, most would prefer not to have to go through Probate Court because it takes a lot of time, effort, and money.

How can probate be avoided? In my experience, the number one false assumption people seem to make is that if a person dies leaving a Will, then there is no need for probate. However, a Will does not automatically remove the decedent’s estate from probate. A Will is merely directions from the decedent as to what should happen with the property owned by the decedent. Again, whether probate is necessary depends on how assets are titled at the time of death.

If your goal is to avoid probate, a quality estate plan put together by your attorney can save those surviving you from having to go through probate after your death. Not only that, a good estate plan can prevent beneficiaries from losing a portion of their inheritance to creditors and to the attorney(s) settling the estate. Some very basic things can be done to decrease the necessity of probate. For example, if you are married and would like your home to pass to your spouse without involving the Court, make sure you and your spouse own title to the home as joint tenants (not as common tenants). You could also name beneficiaries on life insurance policies and set up your financial accounts to be payable on death.

Regardless, do not neglect to put together an estate plan. As the saying goes, the only things certain in life are death and taxes. Those surviving you will be thankful you have a well organized estate plan. It will relieve them from the burden of settling your estate and your loved ones will be free to simply mourn your loss as they should.

*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.