MN Estate Planning | Titling of Property in Minnesota

by Flanders Law Firm LLC on September 20, 2017

A recent article in the Washington Post involved a letter from a reader asking whether she and her husband needed to create a trust to ensure that, in the event of eithers death, the other would be guaranteed to take ownership of the family home seamlessly.

The author of the article dove into the issue of the trust, but quickly glossed over the underlying issue of property ownership. Though trusts can be useful in a multitude of circumstances and should be discussed with your estate planning attorney, they may not always be necessary depending on the way in which title to your property is held. What options are there? And what is the legal significance of each type? To learn more, keep reading.

Titling of Property in Minnesota

The first way of holding title to real property (meaning real estate) is to keep it in you or your significant others name. Under this approach, the property is legally owned by the one person whose name is on the title. This means even if youre married the property is legally yours, not jointly held. This is a perfectly acceptable way of owning property, but there are a few important downsides.

First, if something happens and youre incapacitated, theres no one else empowered to make decisions about the property. Even with a will in place naming your spouse or another loved one as the eventual recipient, this does not come into play during incapacitation. Instead, its likely that a court would get involved and appoint someone to oversee the property, a potentially cumbersome process. Another downside is that in the event of your death, the house will almost assuredly pass through the probate system, something that costs money and wastes time.

A second way of holding title to property is as joint tenants with right of survivorship (often abbreviated as JTWROS). JTWROS is the most common way that property is held by married couples and its popular for a reason. With JTWROS, you and the other owner (usually a spouse) are seen as co-owners. You each hold power over the property and, in the event the other co-owner dies, full ownership transfers automatically to the surviving owner without the need for probate.

This saves both time and money and seems inherently fair when considering a jointly acquired piece of real estate. That said, there can be problems with this too. For one thing, by taking on a co-owner you give up control. Though this may be fine between spouses, another occasion where JTWROS is used is by parents and their adult children. If the child gets into debt or other legal troubles, the co-ownership could endanger your home as he or she would be considered a rightful owner and thus his or her ownership is subject to claims by creditors.

Tenancy in Common and Joint Tenancy

Tenancy in common is yet another way of holding title to real property. Tenants in common exist when multiple owners each own a percentage of a property. Each owner can do what he or she wishes with their share, including leaving their share to their heirs.

Though this allows multiple people to jointly own a single piece of property, it differs in a crucial way from JTWROS. In a tenancy in common, if an owner dies, the shares of that person do not automatically revert to other owners. Instead, the shares of the one owner will be distributed to the owners heirs, meaning that ownership likely continues to stay divided rather than unifying after death. This can make it difficult if not impossible to make decisions about property when there are multiple owners forced to reach agreement.

A fourth way of holding property is known as tenancy by the entirety. This is only allowed in some states and typically reserved for married couples. Like with joint tenants, if one spouse passes away his or her ownership passes to the other spouse. Also like joint tenants, this passage occurs automatically and without the help of probate.

A difference with tenancy by the entirety is that one spouse is unable to transfer his or her share of the ownership to another person unless the other spouse signs off. One benefit of this is that it protects the property from potential claims from outsiders, including creditors.

Right of Survivorship

Finally, another way of holding title to property occurs in only nine states across the U.S. where community property is a recognized legal concept. In these states, each partner owns half of the real property. Just like with a tenancy in common, each of the owners is able to distribute his or her half of the property to someone else, unless the community property is held with the right of survivorship.

Minnesota Titling of Property Lawyers

An experiencedMinnesota estate planning lawyercan help walk you through theprobate process, answering questions along the way. For more information on estate planning in Minnesota, along with a variety of other topics, contactJoseph M. FlandersofFlanders Law Firmat(612) 424-0398.



Time Limits for Probating a Will in Minnesota

by Flanders Law Firm LLC on September 5, 2017

Time Limits for Probating a Will in MinnesotaTypically, when we discuss timing and probate, the issue concerns how fast (or slow) the probate court is likely to move.

Though this is a common question, and a good one to understand, for some people moving quickly may not be what theyre most concerned about. In such cases, the question is not how fast is probate likely to go, but how slowly can it go? As in all things, there are limitations on how long an executor has to open probate of a will. To learn more about those limits, keep reading.

Probating a Will in Minnesota

First off, what needs to be done to open a probate estate? To start, you need to find the will. This might be easy if youve already discussed the issue with the decedent or it could take some time if not. Once youve found the will, youll need to read through it and prepare a list of beneficiaries and others named in the will or who may have a claim to the estate. Do the same thing with those owed money by the estate. Names and contact information are important as these people will all need to be contacted once the estate is opened in probate. After getting names, do an inventory of assets and liabilities. Finally, its time to meet with an experienced attorney and file paperwork to open the probate estate.

Time Limitations

In almost every state there is a limit to the amount of time the heirs to an estate or the executor have to produce a will that must go through the probate process. The specific time frames can vary widely between states, though a common range is between one and three years. In some places, like Montana or New Mexico, heirs are required to bring forward wills within three years after a persons death. In Texas, heirs have four years. In Pennsylvania, legislators must have been feeling more generous and wrote a 21-year wait time into law.

What happens after the time limit has passed? If you wait too long, youll lose out and courts wont allow a will to enter the probate process. That means if youre in Texas and wait five years to bring a will before the probate court you will likely have the claim rejected, unless theres a good reason.

In some cases, there are ways around what would otherwise appear to be strict time limits. One way that a person could petition the court to allow probate even if the time has come and gone is by claiming that the heirs were not able to discover the will until it was already too late. In other states, the time limits can be extended if the courts have had a hard time identifying and notifying heirs or if an executor cannot be located.

Closing a Probate Process

So far weve discussed the timing requirements when it comes to opening or beginning the probate process. Are there similar time constraints on closing probate? Not usually. The deadline people have to be concerned with is getting the probate case opened on time. Once the case is open, things can sometimes bog down for months or even years. However, the court wont hold heirs responsible for things beyond their control. Instead, executors have to be sure not to drop the ball on the front end and get the case filed within the time limits.

On the other end of the spectrum, are there time limits for how long a person must wait to open probate that you need to be aware of? In some states, yes. For instance, in New Mexico, heirs also must avoid filing for probate too soon. Probate courts in the state wont allow a will to be probated until a certain amount of time has passed since the persons death. In New Mexico the limit is five days, but again, this changes depending on your location.

Minnesota Probate Lawyers

An experiencedMinnesota probate lawyercan help walk you through the complicated process of establishing a workable estate plan. For more information on estate planning in Minnesota, along with a variety of other topics, contactJoseph M. FlandersofFlanders Law Firmat (612) 424-0398.



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