First, we should define generally what these roles are, and some of the terms that you will hear associated with them.

A guardian is a person that is appointed by the Court to assist a person, called the ward, with decisions regarding health care, living arrangements, and other day-to-day affairs. A guardian can assist with financial issues, but only if there is no conservator appointed.

A Conservator is a person who is appointed by the Court to assist a person in managing their assets, paying bills, and dealing with other financial and business matters. The person subject to a conservatorship is called a protected person.

Often times, depending on the situation, a person may seek both a guardianship and a conservatorship over a person, however, that is not always the case. A person can also petition on their own behalf to have a guardian appointed for them. This is rare, but it does happen.

We often think of seeking a guardianship or conservatorship when a person develops physical or mental problems that impair them from making decisions for his or herself. However, before you consider one of these, you should consider the alternatives to a guardianship or conservatorship:

Alternatives to Guardianship:

1. Health care directive: A health care directive is a document whereby a person appoints someone to act on their behalf if they cannot speak for themselves regarding health care issues. Until recently, this was called a living will or a health care power of attorney.
2. Case Management: there are public and private services that can provide help with creating a plan for healthcare, daily living and provide some level of supervision.
3. Family/community support for daily activities.

Alternatives to Conservatorship:

1. Power of Attorney: if the person is still cognitively able to understand and sign a power of attorney form, this is essentially a “permission slip” that allows someone else to step in for you and manage your financial affairs.
2. Trust: if the person is able, they could transfer all of their financial assets into a trust, to be managed by a trustee that he or she would designate.
3. Representative payee: if social security, veterans, or other public benefits payments are the majority of the assets of a person, they can designate a representative payee who receives the payments in their stead, and then is authorized to spend them for the person’s benefit.
4. Joint/co-signers on bank accounts.
5. Automatic payments for bills.

The process:

So if you have decided that one of the above options will not work for you or the proposed ward or protected person, let’s now discuss the process to get a guardianship or conservatorship in place.

1. Meet with an attorney if possible. There are forms online, and many counties offer self-help offices if you cannot afford this. Another alternative is to ask if your attorney will file for you “in forma pauperis” and try to get the County to pay his or her fees.
2. File a petition for guardianship and/or conservatorship with the Court
   1. In this document, you will indicate your information as the petitioner, as well as information about the proposed guardian or conservator. There can be more than one guardian or conservator appointed at the same time.
   2. You will need to supply names and addresses of the person’s kin: spouse, children, siblings, or closest adult relatives. If the person is currently residing in a medical facility, you will need the name of the administrator of that facility. If the ward or protected person has an attorney, that person must also be specified.
   3. You will need to specify the medical condition, mental condition and/or behaviors that have been exhibited that make it necessary for a guardianship and/or conservatorship.
   4. You will need to declare what the likely value of the person’s assets is, regardless of whether you are applying for a guardianship or conservatorship.
   5. You must serve notice of the petition on all of the interested persons listed on the petition.
   6. Once the court sends back a notice of hearing, this must be served on all interested persons.
   7. Any guardian or conservator must submit to a background check conducted by the Department of Human Services, with few exceptions.
   8. As part of the process of preparing for the hearing, your attorney will try to get a physician’s statement from any health care provider that the proposed ward or protected person is seeing. This will help to substantiate your facts in the petition. You can also try to get one of these on your own.
   9. Also, after the petition is received, the court will appoint a visitor to go and visit the proposed ward. This is a person chosen from a pool of independent persons with a background in medicine or psychology that visits the proposed ward or protected person and makes their own determination as to whether a guardianship or conservatorship is needed. The visitor also serves the ward/protected person with notice of the hearing.
   10. After all of this, you attend a hearing on the matter. Your attorney will present the petition, and you may be asked to take the stand and answer questions from the judge as to the facts in the petition, and any other concerns the judge may have. If the guardianship or conservatorship is contested by the person who it is being sought for, they have a right to submit evidence and testimony showing that they do not need to have a guardian or conservator appointed. At the end of the hearing, the judge may or may not rule on the matter.
   11. If the guardianship and/or conservatorship is approved, you will receive certified letters of guardianship and/or conservatorship from the court that allow you to manage things for the ward/protected person.

After appointment:

Getting appointed is not the end of your dealings with the court. At a minimum, there are annual reports that you must file for guardianships and conservatorships.

For a guardianship, you must file an annual well-being report within 60 days of the anniversary date of your appointment. In this report, you tell the court of the current mental, physical and social condition of the ward, where the ward lived in the past year, and details of the care that the ward received, any restrictions you placed on them, how many times you saw the ward in the past year, and your opinion on whether the guardianship should continue.

For a conservatorship, there are several requirements:

1. Within 60 days of your appointment, an inventory of the assets of the protected person must be filed. Minnesota courts require that this be done online via the CAMPER (Conservator Account Monitoring Preparation and Electronic Reporting) system. Either the conservator or his or her attorney may do this.
2. Additionally, every year, within 60 days of the anniversary date of your appointment as conservator, you must file an account stating how the assets were managed and spent through the year. You must do this via the CAMPER system as well.
3. Finally, when the conservatorship terminates, either at the death of the protected person, or at the time it is lifted, you must file a final account with the court.

Ending a guardianship or conservatorship:

A guardianship or conservatorship ends for three reasons:

1. The person it was for dies,
2. The person it was for is restored to capacity, and can manage his or her affairs,
3. If the guardianship/conservatorship was for a minor, they have reached majority and do not need it anymore.

To terminate a guardianship or conservatorship, a petition and order for discharge must be filed, stating the reason for termination of the guardianship/conservatorship. In addition, for conservatorships, the final account must be filed. If the court agrees, they will issue the order, discharging the guardian and/or conservator.

Navigating this process can be time-consuming and difficult in many ways. Call us if you have questions regarding a guardianship or conservatorship, and let us help you get started. We will provide caring, professional service at a reasonable price during an otherwise hard time. 

To put it simply, probate is the process whereby assets that were owned solely in the name of a deceased person are transferred to that person’s heirs (family members) or devisees (recipients under a will). If the deceased person had a will, it will be a “testate” probate, and governed by the terms of the will. If the deceased person did not have a will, it will be an “intestate” probate, and will be governed by Minnesota law.

A probate is only necessary if the decedent had assets in his or her name with a value of $50,000 or more, or any real estate. If the decedent died with assets of less than $50,000 which are not real estate, you can use a “short-cut” process called an affidavit of collection to take care of those assets.

Once it is determined that a probate is needed, the process is as follows:

A.  Petition:

A Petition requests that the personal representative be appointed by the Court to administer the estate and request that the will, if any, be administered.

B.  Hearing:

Once the Petition is filed, the Court will set a hearing date.  Notice of the hearing must be provided as follows:

1)            Published in a legal newspaper according to the statutory requirements.

2)            Mailed to surviving spouse, children, heirs, devisees, and executors named in the will, if any.

3)            Notice is also provided to the Commission of Human Services to insure that there are no claims for medical assistance reimbursement.

If there are no objections to the Petition, it is typically unnecessary for anyone to attend the hearing.

C. Letters:

On the hearing date, the Court will issue an Order Appointing the Personal Representative and will issue Letters Testamentary, or if there is no will, Letters of General Administration.  This is the document that will be needed to show that the Personal Representative has the power to conduct transactions on behalf of the estate.

D.  Estate Account and Management of Assets:

The Personal Representative should open an estate checking account.  All assets of the deceased person should be placed in this account, and all bills paid out of this account.  No distributions to beneficiaries should be made at this time.  However, assets can be sold or liquidated, and bills paid.  The personal representative should keep careful accounts and retain all receipts, invoices, and other documentation.

E.  Inventory and Appraisement:

During the administration of the estate, the Personal Representative should work on collecting information regarding the assets that were in the decedent’s name alone, such as their date of death values, account numbers, identification numbers, decedent’s last statement, and similar documentation.  This information should be provided to our office so that an Inventory and Appraisement can be prepared describing these assets, as well as their date of death values.

F. Waiting:

There is a four-month waiting period from the first date of publication of notice of the hearing in the newspaper during which creditors can make claims. The estate cannot be closed and distributions to beneficiaries should not be made until this period has expired.

G. Final Account:

Once the four-month period is over, and once the assets are liquidated, the personal representative can begin working with our office on the Final Account. The Final Account begins with the value of assets contained in the Inventory, and then describes all additional receipts and disbursements.  The Final Account ends with the balance on hand for distribution.  The estate checkbook ledger, statements for the estate checking account, invoices, returned checks, and other similar documentation should be provided to our office to assist in preparing this document.

H. Closing the Estate:

Once the Final Account is complete and has been signed by the Personal Representative, it is sent to the Court along with the other probate closing documents.  The Court sets a hearing date (also conducted in chambers) and on that date, the Court will either approve or disapprove of the distribution of the assets on hand to the beneficiaries and discharge the personal representative.

A Probate often takes 6-9 months or more to complete, depending on the complexity. Some can take 1-2 years.  Probate can be an advantageous way to settle an estate if there are conflicts over assets for which court intervention could be helpful.  Probate may also be the right choice if you do not wish to do more advanced estate planning involving transferring all of your assets to a revocable trust.

Please call us if you have questions about probate. Our experienced staff has many years of experience in this area- we can help!

First, let me briefly explain how the old system worked. The old system, called the Homestead Market Value Credit, calculated the total property tax that a person would owe based on their property value, by taking the estimated market value for that year, and multiplying it by 0.01. This gives you your net taxable capacity for your property. You multiply this number by the gross tax rate (the sum of county/city/school district and any special tax districts you are in) to get the gross tax you owe. Then, a credit was calculated. The credit amounted to 0.4% of the first $76,000 in market value and 0.09% of the market value over $76,000 until it hit $0 at $413,800 of market value. The State of Minnesota was supposed to reimburse county, city and township governments for these tax credits. However, the state faced budget deficits, and it started cutting the amount of the credit reimbursements that it was giving, and in recent years, many counties, cities and townships were not getting any reimbursement at all. This forced cities to increase their tax levies, cut spending, or both.

The new law aims to solve this problem by eliminating the state reimbursement scheme entirely. Instead of calculating tax and then giving a credit on that tax, the new system looks at the assessed market value of the property, and then discounts that value by 40% of the first $76,000 in market value and 9% of the market value over $76,000 until it hits $0 at $413,800 of market value. The tax is charged at this discounted value, and the county, city or township charges and keeps this entire amount. This has the effect of lowering the tax base of each city, and this is likely to result in spending cuts and higher tax levies. It is the opinion of the Minnesota Department of Revenue that, if levies remain the same, taxpayers will pay more taxes under the market value exclusion than they did under the credit program.[1]

The value that a person pays in property taxes under this program is also increased by school district levies and special taxing districts that may or may not apply, depending on where you live.

So what might happen now? It is my opinion that taxes on most homesteads will increase by some amount.

Please call us if you have questions about this, or any other real estate matters.

• Notify Social Security of the death.  If you are a spouse, or if you have minor children at home, check to see if any of you are eligible for benefits.
• If the deceased was a member of the military, notify them of the death and check for possible death benefits.
• Order copies of the Death Certificate.  You will need them to transfer bank and other financial accounts, as well as to send to insurers and others who may be holding assets or benefits payable to the estate.
• Notify all insurance companies and pension/retirement companies.
• Notify banks and other institutions where the deceased had loans, checking and savings accounts.
• Change car or recreational vehicle titles by contacting the motor vehicle registration office.
• Have all mail forwarded to you.
• Notify the employer and all former employers of the deceased; check out possible pension benefits.
• Pay creditors.
• If a credit card or other charge account of the deceased was in the names of both of you, you are liable for the bills.  Remove the deceased’s name from the account if you wish to continue using it; close the account if you don’t want to use it.  If the account was in the deceased’s name only, close the account; you may not be responsible for these bills.  In Minnesota, a spouse is responsible only for the “family necessary” bills, including medical bills, on the account of a deceased spouse.
• If necessary, file health care claims to pay extensions of the last illness.
• If the deceased owned $50,000 or more worth of property in his or her name alone, you must check with a probate attorney.  If the deceased left a Will, the personal representative named in the Will can do this.
• Check for double indemnities.  If the deceased died in an accidental death, his or her estate might be eligible to collect above and beyond the standard life insurance benefit if the policy carried an accidental death clause.  The deceased also may have carried additional accident insurance if he or she purchased airline tickets on a major credit card, or was a member of an auto or travel club.
• Notify utilities and service providers, such as telephone, newspaper, internet, television, power, gas and water.
• If decedent was beneficiary in your will, insurance policy, IRA, pension, etc., have them removed.

Please contact us if you require any assistance in these or similar matters. We are here to help!

The requirements for qualified business property are as follows:

1. Its value must be included in the federal adjusted taxable estate,
2. It must be property that was used in the operation of a trade or business in which the decedent or the decedent’s spouse was actively involved in operating,
3. The gross annual sales of the business must have been 10 million or less
4. The decedent must have owned the business for at least 3 years before death, and
5. A family member who is a qualified heir must use the property for three years after the date of death.  A qualified heir is one who agrees to this three year use.

The requirements for farm property are very similar:

1. Its value must be included in the federal adjusted taxable estate,
2. It must be property that consists of a farm, and must have been the decedent’s agricultural homestead for property tax purposes.
3. The decedent must have owned the farm property for at least 3 years before death, and
4. A family member who is a qualified heir must use the property for three years after the date of death.  A qualified heir is one who agrees to this three year use.

If the property subject to this exclusion is NOT used by a family member for three years after the death of the decedent, then it will be subject to a recapture tax. This tax is equal to 16% of the value of the exclusion, and is due 6 months after the qualifying use stops.

This exclusion could be a powerful, yet mostly simple tool for those persons who own small business or farm property to increase their exclusion from Minnesota estate tax without the use of more complicated trust planning. Please call me today if you think you may have property that meets these standards.

What does a will do?

At a minimum, a will is a document where you designate who you would like to settle out your affairs. This person is called a “Personal Representative” and he or she steps into your shoes when you have died and acts to settle out your affairs. You can also designate who the guardians for your children will be, if you have them. The rest of the will tells the personal representative what to do with your assets. You decide who they go to, and in what amount, and how they will be received. If necessary, you can put more complex tools in place, such as a trust for tax-planning or for minor children, incapacity of a beneficiary, or other various reasons. An important thing to note is that a will only applies to probate property. This is property that only you own (not jointly), and that does not have another type of beneficiary designation on it.

What are the alternatives?

There are a lot of alternatives to a will, depending on the type of assets you own. Some of these alternatives do not require the services of an attorney. The first thing that most people use is a beneficiary designation. This is most often used on retirement plans, life insurance, and annuities. This allows you to designate with the company that holds your account or plan who you would like to receive these assets when you die. If this is done, the filing of a death certificate is generally all that is needed for these assets to pass to whomever you have designated.

A second, similar tool is called a pay-on-death (POD) or transfer-on-death (TOD) designation. This is often done on bank accounts, certificates of deposit, and some other types of investments. It acts like a beneficiary designation in that, you put on record with your bank or investment firm who you would like to receive any of these sorts of assets when you die.

A third tool for the passing of real property (land) is called a Transfer on Death Deed. This is a deed that you file with the Recorder’s Office that tells them who you would like to receive your property when you pass away. The deed does not take effect until you, or if you are married, you and your spouse, have passed away. If you file this deed, when you die, a simple affidavit and death certificate are filed, and the property is transferred to the people you have designated. This tool is not appropriate in all situations, but in some cases, it can be a very easy and inexpensive way to pass your property when you die. It is advisable to engage an attorney to draft this deed for you if you decide to do this, to ensure that the deed is drafted properly and in recordable form.

Please call our office if you have questions about this information, we would be happy to sit down with you to see if a will, or some combination of other tools, is a good fit for you.

So why Cold Spring?
Take one look at the traffic in the Twin Cities, and see why I would run screaming from the place! But more seriously, I am originally from a small town (Clear Lake, Iowa) and I love small town life. It has always been my desire to settle in an area like this.

What made you decide to practice law?
I always wanted to do something to help people in my work. In college, I took courses in law for my political science degree, and I really got turned on to it. I love the intricacies of the law and the creativity that I can find within it to come up with novel solutions to a client’s unique problems.

What is your favorite thing about your practice?
I love meeting with clients and getting to know them. I am blessed to meet such interesting people. I like being able to use my skills to create a product that meets all the client’s needs at a good price. I like it when people leave feeling good about what we have accomplished together.

What do you do in your spare time?
I like to do outdoorsy things, cook and bake, garden and read. I also volunteer with my church and with the Minnesota State Bar Association’s “Wills for Heroes” program.

In 1988, Joe Willenbring retired from the practice of law. In that same year, Kirby Dahl, Paul Wocken and Dan Zimmermann joined as partners of the current firm known as Willenbring, Dahl, Wocken & Zimmermann.  In 1999 the firm became a professional limited liability company.

Mark McKeon has been associated with Willenbring, Dahl, Wocken & Zimmermann, PLLC since its inception. Kelly A. Ketterer joined our staff in 2011 and John Neal in 2008.  An experienced support staff of eight, including three paralegals, assist the attorneys in their varied law practice.

The law firm has offices on the second floor in the Red River at Main building in downtown Cold Spring.  It also keeps an office at 200 Avon Ave, Suite B, of the Avon Electric Building in Avon where appointments can be scheduled.

Photo by umjanedoan on a Creative Commons-Attribution license.

Personal injury litigation and other types of litigation comprises a large portion of the practice for attorneys Kirby Dahl, Paul Wocken, Mark McKeon, and John Neal. Though Twin Cities firms have gained high visibility through heavy advertising in this and other outstate areas, the Willenbring, Dahl, Wocken & Zimmermann law firm has developed a statewide reputation for effective, prompt and efficient service which results in excellent representation in all types of litigation matters. Moreover, the firm’s central Minnesota location has enabled them to represent clients in every county of the state on both state and federal levels.

Transactional Group:

Attorneys Dan Zimmermann and Kelly A. Ketterer maintain a busy office practice where they provide legal services in the fields of estate planning, trusts, wills and probate, business and real estate law, as well as others. Both large and small businesses have relied on Willenbring, Dahl, Wocken & Zimmermann, PLLC to assist them with state and federal rules and regulations, and in other business planning matters. With its considerable experience in many fields of law, the firm is able to handle a wide variety of cases and interests, while retaining an atmosphere of courtesy and respect common to businesses in smaller communities.