ESTATE PLANNING FAQ:
HEALTH CARE DIRECTIVES – FREQUENTLY ASKED QUESTIONS
A health care directive is a legal document that allows you to state your wishes regarding your health care. The directive also allows you to name a health care agent who can make decisions regarding your health if you are not able.
A health care directive protects your health care wishes in the event you become unable to make decisions for yourself. The directive allows you to make your health care wishes known to your health care providers, by way of a written, legal document.
A health care directive also allows you to appoint someone to make health care decisions on your behalf. You are able to choose someone you trust and who is familiar with your health care beliefs and preferences.
A health care directive allows you to include virtually any instructions you wish regarding your health care. Some common instructions include:
- Naming a health care provider
- Conditions under which you want to refuse medical treatment
- Preferences for different types of medical care
- Your religious beliefs and how they affect your medical care
As long as you are deemed to have the mental capacity to do so, you may revoke your health care directive at any time. In order to do so, you must either 1) make a new health care directive; 2) destroy the health care directive; 3) make a written statement revoking all or part of the directive; or 4) make an oral statement to two witnesses that you want the directive revoked.
You must sign your health care directive in the presence of two witnesses or a notary. Witnesses should not be named as agents in the directive. If you take these steps, the directive will become legally binding.
Most people give copies of their directive to their doctor or health care provider, give a copy to their named health care agent, and keep a copy in a safe place— like a safe deposit box or at your attorney’s office.
TRANSFER ON DEATH DEED – FREQUENTLY ASKED QUESTIONS
If you have decided to use a TODD to transfer real property, you should have the document drafted and recorded immediately. A TODD must be recorded during the lifetime of the owner to be valid.
After the owner’s death, the beneficiary named in the TODD must record a death certificate and affidavit of survivorship and clearance certificate (from medical assistance claims and liens) to have the property put into the beneficiary’s name.
No. Minnesota law specifically provides that a designated beneficiary has no rights to the owner’s property during the owner’s lifetime. Beneficiaries cannot transfer, mortgage or pledge any interest in the property as long as the owner is alive.
Unlike other types of deeds, an owner may revoke a TODD or simply record a new one naming a different beneficiary at any time. Like the TODD itself, a revocation must be recorded prior to the owner’s death.
Yes. An owner may name a contingent beneficiary or a class of beneficiaries who get the property if the original beneficiary dies.
No. Transfer on Death Deeds are exempt from state deed tax per Minn. Stat. 287.22(15).
No. Mortgages or other liens that become attached to the property during the owner’s lifetime carry over to the beneficiaries.
A Transfer on Death Deed can be very beneficial for small estates, including situatons where there is one owner and one beneficiary, unmarried committed partners, or individuals who do not need the tax benefits of a trust.
Transfer on Death Deeds allow real property to avoid the probate process and can protect property from a beneficiaries creditors during the owner’s lifetime.
WILLS – FREQUENTLY ASKED QUESTIONS
A Will is a written document directing the disposition of the person’s assets after death. A Will can also deal with issues such as guardianship of minor children. If you do not have a Will, state law determines who will receive your assets after your death, regardless of your wishes. The probate process becomes more difficult and expensive in the absence of a Will.
To make a valid will under Minnesota law:
- You must be at least 18 years old;
- You must be of sound mind;
- The will must be written;
- The will must be signed by the Testator; and
- The will must be witnessed by at least two qualified witnesses, each of whom must also sign the will as witnesses.
A will gives you the opportunity to exercise your right to say what happens with your assets after your death. If you have minor children, it gives you the opportunity to state your preference for a guardian for your children.
You decide who receives your assets after your death. You have the right to say who receives your assets after you die, but only if you say it in a valid will. Telling your son that he will get the farm after you’re gone will not cause him to inherit it, even if you tell everyone else in the family, unless you also put it in writing in a valid will. Of course, there are some restrictions on disinheriting your spouse, and some legal requirements to protect your minor children.
You nominate a Personal Representative or Executor. Generally, a will also nominates someone to act as “personal representative,” or “executor.“ The personal representative is entrusted with the job of seeing that the provisions in the will are carried out.
You can nominate a Guardian for your minor children. A will may also nominate a guardian for the person’s minor children in case the person dies before the children reach adulthood. Although this is evidence of your wishes regarding who should care for your minor children after your death, it is not binding on a Court.
You can include one or more trusts. Your will can direct that your assets be distributed outright to your beneficiaries or you can name a trustee hold one or more beneficiaries’ shares be held in trust to be used for their benefit. This is a good idea if your beneficiaries are minor children or if you have a beneficiary who is disabled.
You can include provisions to minimize potential estate tax. If your estate is large enough to raise the issue of potential estate tax, your will can include provisions to minimize the impact of estate tax on your beneficiaries.
There are several ways in which a Will may not accomplish what it was meant to accomplish. Here are some of them:
Wills don’t apply to “non-probate property”. A will does not govern what happens to what is sometimes called “non-probate property.“ “Non-probate property” is any property that passes directly to one or more beneficiaries named in a deed, beneficiary designation, account agreement, or other document that governs what happens to the asset on your death. Examples of non-probate property:
- Life Insurance;
- Some types of bank and investment accounts;
- Real estate if the title is held as “joint tenants with right of survivorship;”
- Retirement plans and IRA’s;
- Assets held by a trust can be non-probate property
What this means is that if you name someone as your beneficiary under a life insurance policy or other asset and then you later decide that you do not want that person to share in your estate, simply removing that person from your Will won’t change the beneficiary designation under the life insurance policy or other asset.
Divorce can automatically change your Will. Suppose a husband and wife each have a will that leaves all of their assets to each other and each spouse nominates the other as personal representative of his or her estate. Suppose further that sometime after signing these wills the husband and wife divorce each other. Most of the time, people in this situation want to take the ex-spouse out of their will, and some of the time, they get around to executing a new will that accomplishes that. Even if they don’t get around to it, however, probate law does it for them. A divorce or annullment automatically revokes will provisions in favor of the former spouse, including any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.
It depends on whether you care about how your assets are administered and distributed after your death. If you want to take advantage of your right to direct the disposition of your assets, you need a will.
It is unknown. Because probate law changes from time to time, it’s impossible to tell for sure what the rules will be at some unknown future date. If you move to another state before your death, the law that will apply to your estate may or may not be the same as we now have in Minnesota. Even if all of your assets are “non-probate property,” you have designated the beneficiaries you wish to receive the property, it is usually impossible to tell ahead of time whether you will out live your beneficiary. If you do, the asset may cease to be a non-probate asset, and if it does it will be subject to whatever the applicable probate law requires.
Generally, your estate is responsible for valid debts, taxes, and claims. After these are paid, your estate is distributed to your heirs. If you are domiciled in Minnesota at the time of your death, the Homestead, Family Allowance and Exempt Property paragraphs are applied first to determine what constitutes your “intestate estate.“
Homestead. Generally, your surviving spouse, if any, is entitled to your homestead; if you have any descendants who also survive you, your surviving spouse is entitled to a life estate in the homestead, with your surviving descendants being entitled to a remainder interest in the homestead; if you die without surviving descendants, the spouse is entitled to the homestead. A homestead that passes by descent or will to your surviving spouse or descendants is exempt from all debts that were not valid charges against it at the time of your death except for claims for state hospital care and medical assistance.
Family Allowance. Your surviving spouse, your minor children and children you supported while living, if any, are entitled to claim a family allowance for up to 18 months after your death.
Exempt Property. Your surviving spouse, if any, is entitled to one automobile, regardless of value, and up to $10,000 in value of household furniture, furnishings, appliances, and personal effects. If the value of household furniture, furnishings, appliances and other personal effects are worth less than $10,000 then other personal property can be used to make up the difference. If there is no surviving spouse, your children are jointly entitled to this property. The rights of your adult children to exempt property are subject to certain debts, taxes and claims against your estate.
Remainder of Estate. Any part of your estate not disposed of under the preceding rules or used to pay valid debts, taxes and other claims is distributed according to the following rules:
1. Surviving spouse and traditional family – If you have a spouse that survives you, and either (a) you leave no surviving descendants; or (b) all of your surviving descendants are also descendants of your surviving spouse and there is no other descendant of the surviving spouse who survives you, then your surviving spouse is entitled to all of the assets remaining in your estate;
2. Surviving spouse and “blended family” – If you have a spouse and descendants who survive you and either (a) all of your surviving descendants are not also descendants of your surviving spouse; or (b) there is a surviving descendant of your surviving spouse who is not a descendant of yours, then your surviving spouse is entitled to the first $150,000, plus one-half of any balance of your intestate estate;
3. Balance of Intestate Estate. The remainder of your estate, if any, or if there is no surviving spouse, all of your estate goes in the following order to the individuals designated below who survive you:
(a) to your descendants by representation;
(b) if there is no surviving descendant, to your parents equally if both survive, or to the surviving parent;
(c) if there is no surviving descendant or parent, to the descendants of your parents or either of them by representation;
(d) if there is no surviving descendant, parent, or descendant of a parent, but you are survived by one or more grandparents or descendants of grandparents, half of the estate passes to your paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of your paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to your maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to your relatives on the other side in the same manner as the half;
(e) if there is no surviving descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, to the next of kin in equal degree, except that when there are two or more collateral kindred in equal degree claiming through different ancestors, those who claim through the nearest ancestor shall take to the exclusion of those claiming through an ancestor more remote.
No. There are ways to avoid probate, but a Will is not one of them.
Can I Make My Own Will by Writing Out What I Want and Signing It?
A signed document stating what your want will not be considered a valid Will in Minnesota.
The rule of thumb is to update your Will whenever a significant life event occurs. Changes in your life or those of your beneficiaries, changes in your goals, or changes in the law can occur at any time. If those changes occur, your existing Will will no longer reflect your wishes and no longer will accomplish your objectives.
You should review your will periodically, especially after major changes in your life, to see if it still reflects your intentions.
At McCarten Law Firm, our attorneys will meet with you at your initial consultation. Once you have officially hired one of our attorneys to represent you, the attorney is then able to file and serve legal documents on your behalf, and to receive documents and correspondence on your behalf.
Specific steps taken by the attorneys at McCarten Law Firm vary based upon the particular facts and circumstances of your case, and will be discussed with you at your initial consultation.
The family law attorneys at McCarten Law Firm typically work on an hourly-rate basis. Divorce attorneys are not permitted to work on a contingency basis. Clients can expect to pay higher fees for cases that require more time, and lower fees for cases that resolve quickly.
At McCarten Law Firm, we ask clients to pay an initial retainer fee which is held in our Trust Account. Our attorneys then bill time spent on the case against the initial retainer. If the case is resolved and there is money remaining in the Trust Account, the client is refunded the remainder. On the other hand, if the initial retainer is depleted and the case is not yet resolved, the client will be asked to replenish the retainer.
If McCarten Law Firm initiates a divorce on your behalf, we will draft the divorce petition and arrange to serve it on your spouse. On the other hand, if your spouse initiates the divorce action, a McCarten Law Firm attorney will respond to your spouse’s petition, analyze the allegations made, and assist you in navigating the rest of the divorce process.
Each spouse is entitled to fair and equitable treatment by the court, regardless of who initiates the divorce proceeding. However, there may be some value in filing your divorce petition before your spouse can as it pertains to “venue,” or the county in which the divorce will be heard.
It depends. If all of the issues of your divorce are uncontested or agreed to, a McCarten Law Firm family law attorney can help you complete the divorce in as little as a few weeks. However, if there are disputes that need to be mediated or negotiated, the process can take a few months. Finally, if issues in your divorce cannot be negotiated and agreed upon, a court trial may be necessary. On average, a divorce that requires a trial will take between 12 and 18 months. Your divorce may take a longer or shorter amount of time, depending on the specific circumstances of your case.
In Minnesota, there are no guidelines for alimony/spousal maintenance. Many divorces involve no spousal maintenance, meaning neither party pays or receives maintenance.
If there is a substantial disparity between the income of the spouses and they’ve been married for a long time, there is a greater likelihood of one spouse paying maintenance to the other. The award of spousal maintenance is very fact dependent and varies depending on the specific circumstances of each case.
The Minnesota Supreme Court advisory task force has provided a general set of recommendations regarding parenting time. However, Minnesota law does not provide specific guidelines regarding parenting time for the non-custodial parent. Minnesota law does provide a presumption of at least 25% parenting time.
In most cases, parents are able to agree on a parenting schedule that is suitable for the child(ren). If the issue of parenting time is presented to the court, the court will typically acquire guidance from a neutral profession, such as a guardian ad litem or custody evaluator, to determine what is in the children’s best interest.
In January 2007, the Minnesota Legislature passed a law requiring all child support calculations to take into account the incomes of both parents. Generally, the parent with primary physical custody of the child(ren) will receive child support from the other parent, in an amount determined by the State guidelines. Still, the court has discretion to follow the guidelines or to deviate upwards or downwards from those guidelines.
The attorneys at McCarten Law Firm have significant experience with interstate family law cases. Interstate cases involve several bodies of law regarding jurisdiction. Our attorneys can assist in navigating jurisdictional issues and any other complexities that arise from an interstate matter.
Similar to interstate family law cases, international family law cases involve complex jurisdictional issues and international law, including the terms of the Hague Convention. It is important that you be properly advised about the law in these matters. Not only do international family law matters involve court hearings, but they often involve contact with various embassies, peace officers, the Department of State, and the National Center for Missing and Exploited Children.
The attorneys at McCarten Law Firm have successfully represented clients in international divorces and have helped clients smoothly navigate complex legal issues.
Mediation is a process of resolving issues in a divorce or family law case by agreement, utilizing a neutral third party. After it is determined that disputes issues exist, but before the disputed issues are heard by the court, the parties can present their issues to a professional, neutral third party, called a mediator.
Mediators have no authority to render a decision in your case. However, mediators are very effective in assisting parties in finding common ground and creative solutions to resolve disputed issues.
The attorneys at McCarten Law Firm frequently represent clients engaged in the mediation process, and advise them as they work through the mediation process.
Legal custody provides one or both parents with the authority to make decisions about the child’s health, religion, education, etc.
Physical custody is a term used to address where a child lives, primarily.
Joint custody means that both parents share either legal custody, physical custody, or both. Sole custody means that one parents possesses, solely, either legal custody, physical custody, or both.
If parents share joint legal custody, both parents are entitled to weigh in on medical, religious, and educational issues regarding the child. If one parent has sole legal custody, that parent has sole discretion in making decisions regarding the child’s medical treatment, religious upbringing, and education.
If parents share joint physical custody, the child does not reside primarily in one parent’s house. Instead, the child will spend relatively equal time residing with each parent. If on parent has sole physical custody, the child resides primarily with that parent. When one parent has sole physical custody, the other parent may have parenting time. The amount of parenting time depends on the circumstances of the case.
If the parents are married, custody will be decided as a part of the divorce. Temporary custody and parenting time may be ordered by a court, pending the final divorce order.
If the parents are not married, Minnesota law states that the mother is presumed the sole custodian until the father petitions the court to establish custody and parenting time
Under Minnesota law, the courts are not allowed to be biased for or against one parent based on their gender.
If the parents cannot agree on a custody arrangement, the court will make a determination depending on the specific circumstances of each case. The court must consider several factors, which are outlined by Minnesota law, and determine what is in the best interest of the child(ren). The court will also give significant deference to the opinion of an expert, such as a custody evaluator or guardian ad litem.
If a parent does not have physical custody of a child, the time he/she spends with the child is considered “parenting time.” The amount of parenting time that will be agreed upon or ordered will vary depending on the facts and circumstances of your case.
Yes. In instances where a parent has a record of domestic abuse or is deemed to be a physical or emotional danger to the child, supervised parenting time or no parenting time can be ordered by the court.
An ex parte order is an order granting an ex parte motion. Ex parte orders are emergency orders in nature. A typical motion is required to be served on the other party at least 14 days before the hearing. If an ex parte motion is made by one party, the notice requirements are waived in order to get the parties into court sooner.
The court may grant immediate relief to the party making the ex parte motion, pending a hearing and final decision.
Temporary orders stem from temporary motions made by one or both parties. These motions can deal with any issues relevant to the underlying family law case. A temporary order can be in place for a few months or even years, if never modified or overruled by later order.
If parents cannot mutually agree on the issue of child custody, the court will be asked to make the determination. The court will determine which parents will have custody and create a parenting time schedule that it deems is in the child(ren)’s best interest.
In some cases, the court will order a custody evaluation be completed by a neutral evaluator. Custody/parenting time evaluations usually take between three to six months to complete, and the parents will be required to pay for the evaluator. The court will typically follow whatever recommendations the evaluator makes regarding custody/parenting time.
It depends. The court has to consider the statutory factors in each case and determine what is in the child(ren)’s best interest.
Parenting time can be modified any time the modification would be in the best interest of the child(ren).
A substantial modification in parenting time can be considered a change of custody, and a change of custody can only occur if it can be shown that the child(ren)’s present environment is endangering the child(ren).
Minnesota law sets no age at which a child can decide which parent to reside with. As a child gets older and more mature, the court will increasingly consider the child’s wishes as one factor in the determination.
Probably not. The court typically frowns upon minor children testifying in open court. In some cases, the court may allow the child(ren) to give their thoughts or opinions directly to the judge, without the parents present.
Yes. McCarten Law Firm clients frequently utilize mediation to resolve custody and parenting time issues. Mediation is an extremely effective method of resolving any disputed family law issues.
Typically, no. Third parties do not have parenting time rights to minor children unless the third party brings an independent action before the court to gain those rights.
Minnesota has a Uniform Child Abduction Prevention Act (UCAPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It was put into place to try and protect the child and parent from the situation where one parent abducts a child unlawfully and refuses to return the child.
Child support is based on the gross monthly income of both parents, as well as daycare and medical insurance expenses. Parenting time of each parent is also a factor.
There are three tiers for parenting time percentages, under 10%, 10% to 45% and 45.1% to 50%. There is a 12% reduction in child support for a parent receiving between 10% and 45% of the parenting time. There is also a more significant reduction for a parent with 45.1% to 50%.
No. Failure to pay child support is not a valid excuse to deny parenting time.
Typically. Child support is based on the gross incomes of both parents. The calculation also considers the amount of parenting time, daycare expenses and medical insurance expenses.
Not without permission or a court order. A non-custodial parent may give permission allowing the custodial parent to move the child(ren) out of state. However, if the non-custodial parent does not agree with the move, a custodial parent must bring a motion before the court requesting permission to move out of state. The parent requesting the move must show that the move is in the best interests of the child.
No minor child’s name may be changed without both parents having notice of the pending application of change of name. The applicant must show proof that the non-applicant parent(s) has received notification of the Application for Name Change of a Minor.
PERSONAL INJURY FAQ:
If you’ve been in an auto accident, do these 10 things to protect your personal safety and your legal rights:
1) Exchange contact and insurance information with the others involved in the crash.
2) Report the collision to the police.
3) Take photos and/or video of the vehicles, damage, and surrounding scene.
4) Get names and contact information of witnesses.
5) Wait for the police to arrive.
6) Seek treatment for any injuries and tell your doctor about the auto crash.
7) Report the accident to your insurance company.
8) DO NOT give a written or recorded statement to any insurance company or sign any insurance documents without consulting a personal injury lawyer.
9) Contact a personal injury attorney for a free consultation.
10) Follow your doctor’s treatment plan.
If you have been injured in an auto accident, the answer is yes. At a minimum, you should consult with a personal injury attorney to determine what options are available to you. Insurance companies are not usually as accommodating as they claim in their commercials. You will probably be forced to fight to receive the benefits to which you are entitled. Remember, the insurance company’s business model is to take in as many premiums and pay out as few benefits as possible. Studies show that insurance settlements with clients who are represented are, on average, 3 times greater than settlements with clients who are not represented.
The personal injury attorneys at McCarten Law Firm work on a contingency fee basis. That means our attorneys are only paid a percentage of what they collect for you.
Immediately. The insurance company will often call you the day of or the day after the accident to request a statement from you. These statements are recorded and can be used against you later on. The insurance company will also request that you sign authorizations so that they may obtain information about you.
Once you have retained an attorney, the insurance company can no longer contact you directly, allowing you to focus on your physical recovery rather than dealing with an insurance claim. A personal injury attorney will determine what information the insurance company is and is not entitled to obtain. The sooner you hire a personal injury attorney, the sooner witnesses can be interviewed and their testimony preserved.
Minnesota has very specific “no-fault” laws. That means the state requires each auto insurance policy to provide a minimum of $20,000 in medical benefits and up to $20,000 in wage loss benefits. “No-fault” means that it doesn’t matter who caused the collision. Your own insurance policy should pay your wage loss and medical bills as long as they are reasonable and related to injuries that you experienced from the auto crash.
Benefits are to be paid, first, by your own insurance policy. However, if you do not have your own insurance policy, benefits can possibly be paid from the policy of the vehicle you were in at the time of the collision, or from a family member’s insurance policy.
Most time, your insurance company will refuse to pay the full amount of benefits without a fight. Don’t be fooled. Even though they are your insurance company, they are not working for your benefit. Many times, your insurance company will ask you for a recorded statement regarding the crash in order to use it against you later. Your best bet is always to consult with a personal injury attorney before providing a statement to any insurance company— even your own.
About 8 of 10 personal injury cases are resolved by settlement before involving the courts. About 90% of the cases that are filed with the court are resolved by settlement prior to reaching a jury verdict. Although your lawyer will provide you with recommendations and advice based on the facts of your case, the ultimate decision to settle is yours.
If there is no acceptable offer to settle is made by the insurance company, the next step is to sue the at-fault party. Although your attorney will typically be working directly with the insurance company to resolve the case, the law requires that the at-fault driver be named as the defendant in a claim. Minnesota laws prohibits naming an insurance company as the at-fault party.
Only if you are found more than 50% at fault for the accident. Minnesota law says that if you are found less than 50% at fault for the accident, then your insurance company cannot raise your rates if you make a claim for wage loss and medical benefits.
It depends. In most cases, you only have one chance to settle your claim with the insurance company. So, before discussing settlement, your attorney will need to know the extent of all injuries, whether doctors believe they are permanent or not, and what treatment is required. Doctors generally wait about one year before they can determine if injuries will have lasting effects.