Welcome to the Davis Law Firm blog!  Our blog posts relate to important legal updates relevant to our practice areas, and provide answers to questions frequently asked by our clients. If you have questions or comments about one of our blogs, or would like to make a suggestion for a new post, please feel free to email us or call our office.

We hope that you will check back regularly for new blog posts, and we look forward to hearing your comments!

Minnesota Statutory Short Form Power of Attorney Updates
August 7, 2014

A financial power of attorney is a document by which an individual (the principal) designates an agent (the principal's attorney-in-fact) to manage the principal’s financial estate should the principal become incapacitated or otherwise unavailable. Traditionally, in order to grant authority to the attorney-in-fact, the power of attorney document was required to specifically list every power transferred by the document (i.e., to buy and sell real estate, file tax returns, access bank accounts, etc.). This is called a traditional or long form power of attorney. In an effort to simplify the traditional power of attorney document, the Minnesota Legislature created a statutory short form power of attorney in the early 1980’s.

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Standby Guardianships
October 30, 2013

In Minnesota, a standby guardian is an individual appointed by the parents of a minor child to take care of the child’s physical well-being upon a triggering event (such as death, sudden incapacity, or other emergency situations) in which the child’s parents are unable to do so. The standby guardian is appointed by a document executed by the parents prior to the triggering event and is effective with minimal Court approval. In some circumstances, the standby guardianship can continue for up to two years before a traditional guardian must be appointed. A standby guardianship is preferable to a traditional guardianship because it can commence much more quickly, and is not subject to Court supervision, making it much less costly.

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Health Care Directive
September 18, 2013

In Minnesota, a health care directive is a document that contains two parts: a traditional “living will” and a designation of a Health Care Agent. A “living will” is a legal document that allows you to make known your wishes regarding life-prolonging medical treatment and to authorize an individual, such as your spouse or child, to make medical decisions on your behalf, within the dictates stated in the document, in the event you are unable to do so. In addition to incorporating the traditional aspects of a living will, a health care directive allows you to appoint an authorized agent under HIPAA, the federal code which sets national security standards relating to protected health information.

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Financial Power of Attorney
August 12, 2013

A financial power of attorney, or “power of attorney”, is a legal document that appoints another individual, called your “attorney-in-fact”, to manage assets and other financial affairs. The power granted by the document takes effect immediately upon the date it is signed, and allows your attorney-in-fact to access, manage, liquidate, or transfer your assets on your behalf in the event that you are unavailable or unable to do so. The power granted to your attorney-in-fact is terminated immediately and automatically upon your death.

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The Probate Process: Minnesota
July 24, 2013

Probate is the process of transferring a decedent’s assets from the decedent’s estate to the decedent’s heirs or devisees. If a decedent died testate (with a validly executed Will), the decedent’s estate is transferred to the individuals or charities named by the decedent in the Will. If a decedent died intestate (without a Will), the recipients of the decedent’s estate are determined by the intestacy statutes of the state in which the decedent lived. Regardless of whether the decedent died testate or intestate, his or her estate must be probated in order to transfer the assets accordingly. The process of probating an estate can be divided into three periods:

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Probatable Assets & Types of Probate
July 1, 2013

Many people wish to avoid probate upon their deaths. Probate is the court process of transferring a decedent’s assets onto his or her heirs or devisees after the decedent’s death. Thus in order to determine if you estate will have to be probated after your death, you must determine if your estate contains any probatable assets. The table below show which types of assets are probatable and which are non-probatable. If, upon your death, your estate does not contain and probatable assets, no probate will be necessary.

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The Role of a Personal Representative
June 24, 2013

In Minnesota, the personal representative, sometimes referred to as an executor, is the individual appointed by the court to administer the estate of the decedent. It is the responsibility of the personal representative to give notice of his/her appointment, pay claims brought against and debts of the estate, and distribute the estate assets according to the decedent’s will or the applicable intestacy statutes. A personal representative appointed in either a formal or an informal proceeding has broad authority to administer the estate assets, including, generally, the power manage the assets in the manner the decedent could have done during his or her life.

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Minnesota Gift & Estate Tax Changes for 2013
June 13, 2013

As part of the tax law changes passed by the Minnesota legislature in May, the state of Minnesota will begin imposing a gift tax on all gifts completed by Minnesota residents on or after July 1, 2013.  Prior to the new legislation, Minnesota did not impose a tax on gifts of any amount.  However, the new law limits each individual to effectively shelter no more than $1,000,000.00 from the Minnesota gift tax over his or her lifetime and dictates a flat tax rate of ten percent (10%) on gifts exceeding the lifetime credit shelter amount.  The new gift tax law did not impact the $14,000.00 annual gift tax exclusion amount; accordingly, Minnesota residents may continue to gift up to $14,000.00 each to an unlimited amount of individuals on an annual basis without generating the need to file a gift tax return or pay a gift tax on the transfer.  If you intend to include a gifting strategy as part of your estate plan, you may want to consult with an attorney or other professional prior to July 1, 2013.

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Joint Tenancy vs. Tenants in Common
June 10, 2013

There are different ways to jointly own property, and the advantages and disadvantages of each can be confusing. Joint tenancy and tenants in common are two ways to jointly own property in Minnesota with very distinct differences.

Both joint tenancy and tenants in common describe a type of joint ownership over real property, and the deed should specify whether the real property is owned through joint tenancy or tenants in common. In Minnesota, any deed that does not clearly state which type of joint ownership the property is owned through is automatically recognized as tenants in common. While both allow for more than one individual to have an ownership interest in the property at hand, both are structured differently, and have different outcomes once one or more of the owners pass away.

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Davis Law Firm, P.A.
3006 Allegro Park Lane SW, Suite 3
Rochester, MN 55902

Phone: 507-424-6330
Fax: 507-424-6332