Minnesota Legislature
HF 3125
as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am
Current Version - as introduced
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A bill for an act
relating to probate; changing certain provisions of the Uniform Probate Code;
amending Minnesota Statutes 2006, sections 524.2-301; 524.2-402; 524.3-801;
524.3-803.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2006, section 524.2-301, is amended to read:
524.2-301 ENTITLEMENT OF SPOUSE; PREMARITAL WILL.
(a) deleted text begin A testator's surviving spouse, whodeleted text end new text begin If a testatornew text end married deleted text begin the testatordeleted text end after deleted text begin the
testator'sdeleted text end new text begin making anew text end will deleted text begin was executed, is entitled todeleted text end new text begin and the spouse survives the testator,
the surviving spouse shallnew text end receivedeleted text begin , as an intestatedeleted text end new text begin anew text end sharedeleted text begin , no less than the value of the
sharedeleted text end of the estatenew text begin of the testator equal in value to that whichnew text end the surviving spouse would
have received if the testator had died intestate deleted text begin as to that portion of the testator's estate,
if any, that neither is devised to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the surviving spouse nor is devised
to a descendant of such a child or passes under section 524.2-603 or 524.2-604 to such a
child or to a descendant of such a childdeleted text end , unless:
(1) deleted text begin it appears from the will or other evidence that the will was made in contemplation
of the testator's marriage to the surviving spousedeleted text end new text begin provision has been made for, or waived
by, the spouse by prenuptial or postnuptial agreementnew text end ;
(2) the will deleted text begin expresses thedeleted text end new text begin discloses annew text end intention deleted text begin that it is to be effective
notwithstanding any subsequent marriagedeleted text end new text begin not to make provision for the spousenew text end ; or
(3) deleted text begin the testatordeleted text end new text begin the spouse isnew text end provided for deleted text begin the spouse by transfer outsidedeleted text end new text begin innew text end the will
deleted text begin and the intent that the transfer be in lieu of a testamentary provision is shown by the
testator's statements or is reasonably inferred from the amount of the transfer or other
evidencedeleted text end .
(b) In satisfying the share provided by this section, devises made by the will deleted text begin to
the testator's surviving spouse, if any, are applied first, and other devises,deleted text end other than a
devise to a child of the testator who was born before the testator married the surviving
spouse and who is not a child of the surviving spouse or a devise or substitute gift under
section 524.2-603 or 524.2-604 to a descendant of such a child, abate as provided in
section 524.3-902.
Sec. 2.
Minnesota Statutes 2006, section 524.2-402, is amended to read:
524.2-402 DESCENT OF HOMESTEAD.
(a) If there is a surviving spouse, the homestead, including a manufactured home
which is the family residence, descends free from any testamentary or other disposition of
it to which the spouse has not consented in writing or as provided by law, as follows:
(1) if there is no surviving descendant of decedent, to the spouse; or
(2) if there are surviving descendants of decedent, then to the spouse for the term of
the spouse's natural life and the remainder in equal shares to the decedent's descendants
by representation.
(b) If there is no surviving spouse and the homestead has not been disposed of by
will it descends as other real estate.
(c) If the homestead passes by descent or will to the spouse or decedent's descendantsnew text begin
or to a trustee of a trust of which the spouse or the decedent's descendants are the sole
current beneficiariesnew text end , it is exempt from all debts which were not valid charges on it at the
time of decedent's death except that the homestead is subject to a claim filed pursuant
to section 246.53 for state hospital care or 256B.15 for medical assistance benefits. If
the homestead passes to a person other than a spouse or decedent's descendantsnew text begin or to a
trustee of a trust of which the spouse or the decedent's descendants are the sole current
beneficiariesnew text end , it is subject to the payment of expenses of administration, funeral expenses,
expenses of last illness, taxes, and debts. The claimant may seek to enforce a lien or other
charge against a homestead so exempted by an appropriate action in the district court.
(d) For purposes of this section, except as provided in section 524.2-301, the
surviving spouse is deemed to consent to any testamentary or other disposition of the
homestead to which the spouse has not previously consented in writing unless the spouse
files in the manner provided in section 524.2-211, paragraph (f), a petition that asserts the
homestead rights provided to the spouse by this section.
Sec. 3.
Minnesota Statutes 2006, section 524.3-801, is amended to read:
524.3-801 NOTICE TO CREDITORS.
(a) Unless notice has already been given under this section, upon appointment of a
general personal representative in informal proceedings or upon the filing of a petition
for formal appointment of a general personal representative, notice thereof, in the form
prescribed by court rule, shall be given under the direction of the court administrator by
publication once a week for two successive weeks in a legal newspaper in the county
wherein the proceedings are pending giving the name and address of the general personal
representative and notifying creditors of the estate to present their claims within four
months after the date of the court administrator's notice which is subsequently published
or be forever barred, unless they are entitled to further service of notice under paragraph
(b) or (c).
(b)deleted text begin (1) Within three months after: (i) the date of the first publication of the notice; or
(ii) June 16, 1989, whichever is later, the personal representative may determine, in the
personal representative's discretion, that it is or is not advisable to conduct a reasonably
diligent search for creditors of the decedent who are either not known or not identified. If
the personal representative determines that a reasonably diligent search is advisable, the
personal representative shall conduct the search.
deleted text end
deleted text begin (2) If the notice is first published after June 16, 1989,deleted text end The personal representative
shall, within three months after the date of the first publication of the notice, serve a copy
of the notice upon each then known and identified creditor in the manner provided in
paragraph (c). deleted text begin Noticedeleted text end new text begin If the decedent or a predeceased spouse of the decedent received
assistance for which a claim could be filed under section 246.53, 256B.15, 256D.16, or
261.04, notice to the commissioner of human services must benew text end given under paragraph (d)
deleted text begin does not satisfy the notice requirementsdeleted text end new text begin instead ofnew text end under this paragraph deleted text begin anddeleted text end new text begin ornew text end paragraph
(c). deleted text begin If notice was first published under the applicable provisions of law under the direction
of the court administrator before June 16, 1989, and if a personal representative is
empowered to act at any time after June 16, 1989, the personal representative shall, within
three months after June 16, 1989, serve upon the then known and identified creditors in
the manner provided in paragraph (c) a copy of the notice as published, together with a
supplementary notice requiring each of the creditors to present any claim within one
month after the date of the service of the notice or be forever barred.
deleted text end
deleted text begin (3) Under this section,deleted text end A creditor is "known" if: (i) the personal representative
knows that the creditor has asserted a claim that arose during the decedent's life against
either the decedent or the decedent's estate; deleted text begin ordeleted text end (ii) the creditor has asserted a claim that
arose during the decedent's life and the fact is clearly disclosed in accessible financial
records known and available to the personal representativenew text begin ; or (iii) the claim of the
creditor would be revealed by a reasonably diligent search for creditors of the decedent in
accessible financial records known and available to the personal representativenew text end . Under this
section, a creditor is "identified" if the personal representative's knowledge of the name
and address of the creditor will permit service of notice to be made under paragraph (c).
(c) new text begin Unless the claim has already been presented to the personal representative or
paid, new text end the personal representative shall serve a copy of deleted text begin any notice and any supplementarydeleted text end new text begin
thenew text end notice required by paragraph (b)deleted text begin , deleted text end deleted text begin clause (1) or (2),deleted text end upon each creditor of the decedent
who is then known to the personal representative and identifieddeleted text begin , deleted text end deleted text begin except a creditor whose
claim has either been presented to the personal representative or paid,deleted text end either by delivery
of a copy of the required notice to the creditor, or by mailing a copy of the notice to the
creditor by certified, registered, or ordinary first class mail addressed to the creditor at
the creditor's office or place of residence.
(d)(1) Effective for decedents dying on or after July 1, 1997, if the decedent or a
predeceased spouse of the decedent received assistance for which a claim could be filed
under section 246.53, 256B.15, 256D.16, or 261.04, the personal representative or the
attorney for the personal representative shall serve the commissioner of human services
with notice in the manner prescribed in paragraph (c) as soon as practicable after the
appointment of the personal representative. The notice must state the decedent's full name,
date of birth, and Social Security number and, to the extent then known after making a
reasonably diligent inquiry, the full name, date of birth, and Social Security number for
each of the decedent's predeceased spouses. The notice may also contain a statement that,
after making a reasonably diligent inquiry, the personal representative has determined that
the decedent did not have any predeceased spouses or that the personal representative
has been unable to determine one or more of the previous items of information for a
predeceased spouse of the decedent. A copy of the notice to creditors must be attached to
and be a part of the notice to the commissioner.
(2) Notwithstanding a will or other instrument or law to the contrary, except as
allowed in this paragraph, no property subject to administration by the estate may be
distributed by the estate or the personal representative until 70 days after the date the
notice is served on the commissioner as provided in paragraph (c), unless the local agency
consents as provided for in clause (6). This restriction on distribution does not apply to
the personal representative's sale of real or personal property, but does apply to the net
proceeds the estate receives from these sales. The personal representative, or any person
with personal knowledge of the facts, may provide an affidavit containing the description
of any real or personal property affected by this paragraph and stating facts showing
compliance with this paragraph. If the affidavit describes real property, it may be filed
or recorded in the office of the county recorder or registrar of titles for the county where
the real property is located. This paragraph does not apply to proceedings under sections
524.3-1203 and 525.31, or when a duly authorized agent of a county is acting as the
personal representative of the estate.
(3) At any time before an order or decree is entered under section 524.3-1001
or 524.3-1002, or a closing statement is filed under section 524.3-1003, the personal
representative or the attorney for the personal representative may serve an amended notice
on the commissioner to add variations or other names of the decedent or a predeceased
spouse named in the notice, the name of a predeceased spouse omitted from the notice, to
add or correct the date of birth or Social Security number of a decedent or predeceased
spouse named in the notice, or to correct any other deficiency in a prior notice. The
amended notice must state the decedent's name, date of birth, and Social Security number,
the case name, case number, and district court in which the estate is pending, and the date
the notice being amended was served on the commissioner. If the amendment adds the
name of a predeceased spouse omitted from the notice, it must also state that spouse's full
name, date of birth, and Social Security number. The amended notice must be served on
the commissioner in the same manner as the original notice. Upon service, the amended
notice relates back to and is effective from the date the notice it amends was served,
and the time for filing claims arising under section 246.53, 256B.15, 256D.16 or 261.04
is extended by 60 days from the date of service of the amended notice. Claims filed
during the 60-day period are undischarged and unbarred claims, may be prosecuted by
the entities entitled to file those claims in accordance with section 524.3-1004, and the
limitations in section 524.3-1006 do not apply. The personal representative or any person
with personal knowledge of the facts may provide and file or record an affidavit in the
same manner as provided for in clause (1).
(4) Within one year after the date an order or decree is entered under section
524.3-1001 or 524.3-1002 or a closing statement is filed under section 524.3-1003, any
person who has an interest in property that was subject to administration by the estate may
serve an amended notice on the commissioner to add variations or other names of the
decedent or a predeceased spouse named in the notice, the name of a predeceased spouse
omitted from the notice, to add or correct the date of birth or Social Security number of a
decedent or predeceased spouse named in the notice, or to correct any other deficiency
in a prior notice. The amended notice must be served on the commissioner in the same
manner as the original notice and must contain the information required for amendments
under clause (3). If the amendment adds the name of a predeceased spouse omitted from
the notice, it must also state that spouse's full name, date of birth, and Social Security
number. Upon service, the amended notice relates back to and is effective from the date
the notice it amends was served. If the amended notice adds the name of an omitted
predeceased spouse or adds or corrects the Social Security number or date of birth of the
decedent or a predeceased spouse already named in the notice, then, notwithstanding any
other laws to the contrary, claims against the decedent's estate on account of those persons
resulting from the amendment and arising under section 246.53, 256B.15, 256D.16, or
261.04 are undischarged and unbarred claims, may be prosecuted by the entities entitled
to file those claims in accordance with section 524.3-1004, and the limitations in section
524.3-1006 do not apply. The person filing the amendment or any other person with
personal knowledge of the facts may provide and file or record an affidavit describing
affected real or personal property in the same manner as clause (1).
(5) After one year from the date an order or decree is entered under section
524.3-1001 or 524.3-1002, or a closing statement is filed under section 524.3-1003, no
error, omission, or defect of any kind in the notice to the commissioner required under
this paragraph or in the process of service of the notice on the commissioner, or the
failure to serve the commissioner with notice as required by this paragraph, makes any
distribution of property by a personal representative void or voidable. The distributee's
title to the distributed property shall be free of any claims based upon a failure to comply
with this paragraph.
(6) The local agency may consent to a personal representative's request to distribute
property subject to administration by the estate to distributees during the 70-day period
after service of notice on the commissioner. The local agency may grant or deny the
request in whole or in part and may attach conditions to its consent as it deems appropriate.
When the local agency consents to a distribution, it shall give the estate a written certificate
evidencing its consent to the early distribution of assets at no cost. The certificate must
include the name, case number, and district court in which the estate is pending, the name
of the local agency, describe the specific real or personal property to which the consent
applies, state that the local agency consents to the distribution of the specific property
described in the consent during the 70-day period following service of the notice on the
commissioner, state that the consent is unconditional or list all of the terms and conditions
of the consent, be dated, and may include other contents as may be appropriate. The
certificate must be signed by the director of the local agency or the director's designees
and is effective as of the date it is dated unless it provides otherwise. The signature of the
director or the director's designee does not require any acknowledgment. The certificate
shall be prima facie evidence of the facts it states, may be attached to or combined with a
deed or any other instrument of conveyance and, when so attached or combined, shall
constitute a single instrument. If the certificate describes real property, it shall be accepted
for recording or filing by the county recorder or registrar of titles in the county in which
the property is located. If the certificate describes real property and is not attached to or
combined with a deed or other instrument of conveyance, it shall be accepted for recording
or filing by the county recorder or registrar of titles in the county in which the property is
located. The certificate constitutes a waiver of the 70-day period provided for in clause (2)
with respect to the property it describes and is prima facie evidence of service of notice on
the commissioner. The certificate is not a waiver or relinquishment of any claims arising
under section 246.53, 256B.15, 256D.16, or 261.04, and does not otherwise constitute a
waiver of any of the personal representative's duties under this paragraph. Distributees
who receive property pursuant to a consent to an early distribution shall remain liable to
creditors of the estate as provided for by law.
(7) All affidavits provided for under this paragraph:
(i) shall be provided by persons who have personal knowledge of the facts stated
in the affidavit;
(ii) may be filed or recorded in the office of the county recorder or registrar of
titles in the county in which the real property they describe is located for the purpose of
establishing compliance with the requirements of this paragraph; and
(iii) are prima facie evidence of the facts stated in the affidavit.
(8) This paragraph applies to the estates of decedents dying on or after July 1, 1997.
Clause (5) also applies with respect to all notices served on the commissioner of human
services before July 1, 1997, under Laws 1996, chapter 451, article 2, section 55. All
notices served on the commissioner before July 1, 1997, pursuant to Laws 1996, chapter
451, article 2, section 55, shall be deemed to be legally sufficient for the purposes for
which they were intended, notwithstanding any errors, omissions or other defects.
Sec. 4.
Minnesota Statutes 2006, section 524.3-803, is amended to read:
524.3-803 LIMITATIONS ON PRESENTATION OF CLAIMS.
(a) All claims as defined in section 524.1-201(6), against a decedent's estate which
arose before the death of the decedent, including claims of the state and any subdivision
thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated,
if not barred earlier by other statute of limitations, are barred against the estate, the personal
representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) in the case of a creditor who is only entitled, under the United States Constitution
and under the Minnesota Constitution, to notice by publication under section 524.3-801,
within four months after the date of the court administrator's notice to creditors which
is subsequently published pursuant to section 524.3-801;
(2) in the case of a creditor who was served with notice under section 524.3-801(c),
within the later to expire of four months after the date of the first publication of notice to
creditors or one month after the service;
(3) within deleted text begin the later to expire ofdeleted text end one year after the decedent's death, deleted text begin or one year after
June 16, 1989,deleted text end whether or not notice to creditors has been published or served under
section 524.3-801deleted text begin , provided, however, that in the case of a decedent who died before June
16, 1989, no claim which was then barred by any provision of law may be deemed to have
been revived by the amendment of this sectiondeleted text end .
(b) All claims against a decedent's estate which arise at or after the death of the
decedent, including claims of the state and any subdivision thereof, whether due or to
become due, absolute or contingent, liquidated or unliquidated, are barred against the
estate, the personal representative, and the heirs and devisees of the decedent, unless
presented as follows:
(1) a claim based on a contract with the personal representative, within four months
after performance by the personal representative is due;
(2) any other claim, within four months after it arises.
(c) Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge, or other lien upon property
of the estate;
(2) any proceeding to establish liability of the decedent or the personal representative
for which there is protection by liability insurance, to the limits of the insurance protection
only;
(3) the presentment and payment at any time within one year after the decedent's
death of any claim arising before the death of the decedent that is referred to in section
524.3-715, clause (18), although the same may be otherwise barred under this section; or
(4) the presentment and payment at any time before a petition is filed in compliance
with section 524.3-1001 or 524.3-1002 or a closing statement is filed under section
524.3-1003, of:
(i) any claim arising after the death of the decedent that is referred to in section
524.3-715, clause (18), although the same may be otherwise barred hereunder;
(ii) any other claim, including claims subject to clause (3), which would otherwise be
barred hereunder, upon allowance by the court upon petition of the personal representative
or the claimant for cause shown on notice and hearing as the court may direct.