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What is the difference between Probate and Non-probate Assets?

As an estate planning attorney, one of the most common misconceptions I hear is, “I have a Will, so my family will avoid a probate proceeding.” This is simply not the case. Having a Will alone will not keep your estate from going before a probate court. A Will simply allows you to direct how your assets are dispersed and who gets them. Whether or not an estate will be probated depends on what assets the decedent (the person who has died) owns at the time of death and how they owned them. Assets that are left only in the...
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How Often Should I Update My Estate Plan?

Having an estate plan is an important step that everyone should contemplate. It allows you to direct where your hard-earned and cherished assets go, ultimately deciding who gets them and when and how they will inherit. A question I often get asked is, “How often should I update my Will or Trust document?” In typical lawyer fashion, the short answer is, it depends on your individual situation. However, your estate planning documents should be reviewed every so often, roughly every 3–7 years. Here are some instances in which an update or review of your estate plan should be considered: 1.)...
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You Have Inherited Farmland. Now What?

Inheriting farmland can be more complicated than simply receiving the title to the real estate. Inherited farmland can take many forms including from a lifetime gift, or estate, or a trust. Considerations may differ depending on whether you have inherited farmland outright or in and entity such as a Trust, Corporation, or LLC.   Although Minnesota has no inheritance tax, the farmland in a Trust or Estate may be subject to an Estate Tax or Gift Tax depending on how it was received. Additionally, whether the land can be designated as Homestead will determine your real estate tax obligations. You...
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Don’t Forget Your Will and Fall Cleaning To-Do List

Fall is traditionally a time for taking stock, reorganizing, and preparing. Don’t forget to add creating or updating your Will to your fall to-do list. Your Will is an essential document directing the transfer of your property when you die. A Will is necessary if you wish to make specific gifts to friends, loved ones, or charities. A Will allows you the opportunity to dispose of your assets after you die to people or organizations that normally would not inherit any portion of your estate. You can also identify specific assets that are unique to your estate such as family...
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Are Retirement Accounts Protected in a Bankruptcy?

Since the Covid-19 pandemic-era relief programs are slowly expiring, bankruptcy cases are exponentially increasing in Minnesota. For bankruptcy cases, I often get asked, “will my retirement account(s) be exposed to the trustee? Are they protected?” The answer is almost always yes. Under both the state and federal exemptions an ERISA qualified plan is protected in full (barring some last-minute transfers).  The plans are protected, not just because they are exempt, but because they never become property of the bankruptcy estate and do not need to be exempted.  The language of the ERISA statute essentially creates a spendthrift trust. If you...
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Just the FAQs:  Minnesota’s Ban on Non-Compete Agreements

Non-Compete Agreements have always been disfavored in the eyes of the law.  Now they are banned in Minnesota.  Here is what you need to know: What is a Non-Compete Agreement? A Non-Compete Agreement is any agreement that prevents an employee from obtaining certain employment following termination.  It includes prohibitions on working in a particular capacity or for particular employers/competitors in a specified geographic region and/or for a specified amount of time. Did Minnesota Ban Non-Compete Agreements? Yes.  Employers may no longer enter into Non-Compete Agreements with their employees or independent contractors. When does the ban take effect? The new law...
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Just the FAQs: Earned Sick and Safe Time

Effective January 1, 2024, Minnesota employers must provide employees with paid time off, which can be used for certain reasons, such as sickness of the employee or a family member or to seek assistance if the employee or a family member has experienced domestic abuse.  Here is an overview of the new law.  Who must provide Earned Sick and Safe Time? All Minnesota businesses with one or more employees must provide their employees with Earned Sick and Safe Time. Who is eligible for Earned Sick and Safe Time? Any employee who performs work for at least 80 hours in a...
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Unsolicited comments about an employee to other employers could give rise to defamation claims.

On January 30, 2023, in Abdul-Haqq v. LaLiberte, the Minnesota court of appeals held that “Minnesota law does not recognize a qualified privilege for defamatory statements made while dispensing unsolicited career advice.”  There, LaLiberte contracted with Liam Hawkins as a sales representative for a storm-damage repair company.  Several years later, Hawkins contracted with a company associated with Abdul-Haqq.  LaLiberte subsequently sent several texts messages to Hawkins that disparaged Abdul-Haqq so that Hawkins could make an informed decision about working for Abdul-Haqq.  Abdul-Haqq then sued LaLiberte, alleging the statements in LaLiberte’s text messages were defamatory.  A jury awarded $300,000 in damages...
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Court of Appeals protects specific gifts of real property from an estate.

On December 12, 2022, in In re Estate of Zych, the court of appeals held that the “personal representative of an estate may not sell real property that the testator has specifically devised by will.”  Stanley Zych left his farmland to four sons, certificates of deposit to three daughters, and the remainder of his property was left to all seven children.  Prior to his death, several of his assets were mismanaged for over a decade by three of his children.  As a result of the mismanagement, the district court found that the three children owed significant sums to the estate,...
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What is a Recognition of Parentage?

A Recognition of Parentage (“ROP”) is a document signed by non-married parents of a child. Often, this form is signed at the hospital after the birth of the child, and it is then filed with the Minnesota Department of Health, Office of Vital Records. A ROP establishes a legal relationship between a child and the father, and it is an informal process that does not involve going to court. Moreover, it allows the father’s name to be on the birth certificate and it creates certain legal rights and responsibilities for the father, mother, and child. A ROP can be filled...
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