Ryan, Brucker & Kalis, Ltd.



LEGAL FAQS
Serving Aitkin and Surrounding Communities

What is probate?

Probate is the legal process of administering a deceased person’s probate assets, including paying debts and expenses and distributing the remainder of the probate assets to those individuals and/or entities designated by the will. If the person did not have a will, the Minnesota probate code designates the individuals.

What are probate assets?

Probate assets are assets solely owned by a deceased person at the time of his or her death and that do not pass to any other person or entity through a joint tenancy, beneficiary designation, transfer on death provision, payable on death provision, or similar designation. For example, real estate owned solely by a decedent at their death.

What are non-probate assets?

Non-probate assets are assets that were owned by a deceased person at the time of his or her death but that do pass to one or more persons or entities through a joint tenancy, beneficiary designation, transfer on death provision, payable on death provision, or similar designation. For example, a bank account with one or more designated beneficiaries.

What is a decedent?

A decedent refers to a person who has died.

What is an estate?

An estate describes the assets that were owned by a deceased person at the time of his or her death. An estate can include probate and non-probate assets.

What is a will?

A will is a document by which a person can designate where their probate assets will go when they die. It also typically designates a person or persons as the personal representative who administers the deceased person’s probate assets. A will may designate a guardian to care for young children and a trustee to manage the children’s financial assets.

Does having a will avoid probate?

Not necessarily. Whether an estate must be probated depends on several factors, such as the dollar value of the probate assets. If a deceased person owned real estate titled only in their name and/or owned probate assets valued in excess of $50,000, then a probate proceeding will be required in order to administer and distribute the assets.

If a deceased person had a valid will, then the will is filed with the court. After the debts and expenses of the estate are paid, the probate assets are distributed according to the will. If a deceased person does not have a will, then the Minnesota probate code will determine how the probate assets will be distributed and who will handle administration of the estate.

How much does it cost to probate an estate?

The cost depends on the facts and circumstances of each probate estate. Some considerations include the cost of the burial or cremation; how many probate assets exist and whether there are any complicating factors such as family animosity, land owned solely by the deceased person in more than one state, expenses such as attorney’s fees, accounting services and appraisal costs, and court filing fees. Typically, all of these expenses must be paid from the probate assets before the remaining assets are distributed to the persons and/or entities named in the will, or to those entitled to receive the assets under the Minnesota probate code if there is no will.

How long is a will valid?

A will is valid until it is amended or revoked. It is good idea to review your will every few years to ensure it is up-to-date and reflects your wishes. Major life events can cause a will to become invalid or outdated, including marriage, divorce, a birth, a death, significant changes in the value of assets, the death or relocation of a personal representative or nominated guardian/trustee, or a move to another state.

What is a living will?

A living will is a document that states a person’s preferences and instructions regarding health care. Usually, these are included in a document called a “Health Care Directive.” In it, a person designates someone to make health care decisions for them if they become unable to make decisions or communicate their preferences.

What is a power of attorney?

A power of attorney is a document under which a competent adult (the “principal”) may designate another person (the “attorney-in-fact”) to make financial and other decisions on their behalf. An attorney-in-fact has the duty to keep complete financial records of all transactions entered into by them on behalf of the principal. An attorney-in-fact must also keep the interests of the principal utmost in mind if they exercise any power that is conferred by the power of attorney.

I have decided to sell a property I own which I have leased to someone else.  I can just cancel the lease, tell my tenants to leave and sell the property, right?  

Not necessarily.  Normally, when landlords and tenants enter into a lease, it is a lease for a definite term of time.  Most commonly, leases last for one year, but leases may also be for a shorter or longer duration.  If a lease is for a definite term and sets forth the timeframe during which the tenant(s) can occupy the property, then the landlord must honor the time period identified in the lease or pay the rent for the time period identified in the lease.  There may be exceptions in the lease which would allow the landlord or the tenant to cancel or terminate the lease earlier than the time period contemplated.  Also, a landlord can evict tenants if tenants violate the material terms of the lease.  However, if there is no early-termination provision, and if the tenants have not violated the lease, then the landlord normally must honor the time terms set forth in the lease.  Conversely, if a lease is for a predetermined period of time, then tenants cannot simply cancel the lease when they choose to and must instead stay in the property for the full term of their lease.

Landlords and tenants may also enter into month-to-month tenancies.  Normally, month-to-month tenancies accidentally occur when a lease for a specified period of time expires, and no new lease is executed.  Of course, landlords and tenants can also agree to enter into a month-to-month lease.  Unless the parties agree to different terms, then normally either party to a month-to-month tenancy can terminate a month-to-month lease by giving the other party notice in writing. The time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less.  If a tenant neglects or refuses to pay rent due on a tenancy at will, the landlord may terminate the tenancy by giving the tenant 14 days’ notice to quit in writing.

I have requested that my landlord perform certain repairs in my rental home.  So far, the landlord has not performed the repairs I have requested.  Can I simply withhold my rent from the landlord until the repairs I have requested are performed?

No, you cannot simply withhold rent from your landlord.  In most cases, you can commence a rent abatement action after providing your landlord with appropriate notice that you are escrowing rent with the appropriate Court due to the landlord’s failure to perform repairs. If you fail to give your landlord the notice required by Minnesota Statutes, or if you simply withhold rent without commencing an appropriate lawsuit, your landlord may evict you by commencing an eviction lawsuit.

If I win a money judgment against a party, don’t the Courts force the other party to pay me the amount I won in Court?

Minnesota Courts will enforce judgments through contempt or other Court proceedings, but usually, a party to a lawsuit has to collect their judgment against the other party through private means.  Oftentimes, parties who lose lawsuits do not simply cut a check to the winning party.  Instead, a victorious party to a lawsuit normally has to pursue the collection remedies set forth in the law in order to realize any payment from the party they sued.  Courts normally do not serve as collection agencies for private litigants, although Courts and appropriate State and County agencies will take more active efforts to collect judgments arising from unpaid child support.  However, in the majority of civil cases, a judgment creditor (which means a  party who has a judgment against the other party to a lawsuit) has to pursue its own collection avenues against a judgment debtor.

What procedures are available to help a person collect a debt from another person in Minnesota?

Collection activities are governed and are subject to the Federal Fair Debt Collection Practices Act.  Subject to the requirements and limitations set forth in that law, Minnesota law recognizes three general procedures to collect debts:
  • Wage garnishment - Judgment creditors can garnish up to 25 percent of a debtor’s disposable earnings (as defined in Minnesota Statutes) and persons who are owed unpaid child support can collect even higher percentages.  The debtor’s employer will withhold these amounts from the debtor’s paycheck.
  • Bank garnishment - Judgment creditors can garnish and levy upon non-exempt funds (as defined in Minnesota Statutes) contained in bank accounts owned by a judgment debtor.  The debtor’s bank will withhold deposited sums for the judgment creditor.
  • Execution upon non-exempt property - Judgment creditors can direct the County Sheriff to levy upon and seize non-exempt property that debtors own.  To do so, the Judgment Creditor must obtain a Writ of Execution and must also ascertain the location of such property.  So long as that property is not locked up, hidden, or otherwise secured, then normally, the County Sheriff can take that property upon direction by the Judgment Creditor and sell it at a Sheriff’s sale.
There are other methods available to collect debts or property, including replevin Orders and declaratory judgments, among other avenues.  These are only the most common collection methods used.

I am the father of a child.  I have never signed a recognition of parentage or other documents wherein I agreed that I am the father of my child, and there is no Court Order that states that I am the father of my child.  What custody and parenting time rights do I have with my child?

Usually, the answer to this question is that you have no rights pertaining to your child.  If you are the father of a child, have not signed a recognition of parentage, and have not been adjudicated  to be the father of that child in a Court proceeding, then you likely have no legal rights to parent or spend time with your child.  This means that the mother of that child could deny you visitation and access to your own child.  Your time to file a recognition of parentage is limited, and if you do not fall within the time lines set forth in the applicable statutes, you may have to bring a paternity action to obtain legal rights to your child.

I have not paid child support, and I know that I owe child support arrears (this means that you owe unpaid child support).  Can the mother of my child deny me parenting time or visitation with my child?

Assuming that you have executed a Recognition of Parentage, or have been adjudicated to be the father of that child, then usually you have a right to have parenting time and visitation with that child, regardless of whether you are behind in your child support payments.

CONTACT INFO

Ryan, Brucker & Kalis, Ltd.

  • 201 Minnesota Avenue North
  • Aitkin, MN 56431
  • Phone:  (218) 927-2136