HF 3536

as introduced - 89th Legislature (2015 - 2016) Posted on 04/06/2016 01:01pm

A bill for an act
relating to probate; changing the effect of financial exploitation of a vulnerable
adult in a probate; allowing an emergency order to protect the assets of the
decedent when the decedent has been a victim of financial exploitation; proposing
coding for new law in Minnesota Statutes, chapter 524.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [524.2-805] EFFECT OF FINANCIAL EXPLOITATION ON
INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE, AND
BENEFICIARY DESIGNATIONS; EMERGENCY ORDER.
new text end

new text begin (a) A surviving spouse, heir, or devisee who has committed an act of financial
exploitation under section 609.2335 against the decedent may be barred from any benefits
under the will or under this article, including an intestate share, an elective share, an
omitted spouse's or child's share, homestead, exempt property, and a family allowance;
and the estate of the decedent may pass as if the person who committed an act of financial
exploitation under section 609.2335 had predeceased the decedent. In the absence of a
conviction under section 609.2335, or when the crime was not prosecuted, the court may
find by a preponderance of the evidence that an act of financial exploitation occurred
under section 609.2335. The court shall consider the following factors in determining
whether or not the person who committed an act of financial exploitation may be barred
from receiving benefits in this section:
new text end

new text begin (1) the seriousness of the crime, including the value of property lost or transferred
and the impact of the financial exploitation on the decedent;
new text end

new text begin (2) the use of harassment, duress, force, compulsion, or coercion;
new text end

new text begin (3) the relationship between the decedent and the person who committed the act of
financial exploitation; and
new text end

new text begin (4) the wishes of the decedent and the wishes of potential beneficiaries and heirs
not disqualified by this section, if known.
new text end

new text begin (b) If the court has found that an act of financial exploitation occurred under section
609.2335, the court may use the factors in paragraph (a) to determine that the person who
committed the act of financial exploitation is barred from receiving benefits from the
decedent in any of the following circumstances, and may determine that the interest passes
as if the person had predeceased the decedent:
new text end

new text begin (1) right of survivorship in a joint tenancy for real or personal property and jointly
held accounts in banks, savings associations, credit unions, and other institutions;
new text end

new text begin (2) benefit to a bond or other contractual arrangement;
new text end

new text begin (3) benefit to a life insurance policy;
new text end

new text begin (4) benefit of restitution, including restitution for the crime of financial exploitation;
and
new text end

new text begin (5) any other benefit or property interest of the decedent.
new text end

new text begin (c) An insurance company shall, pending court order, withhold payment of the
policy proceeds to all beneficiaries when written notice has been provided to the insurance
company at its home office that the insured may have been the victim of the crime of
financial exploitation and the beneficiary may have perpetrated the crime. The proceeds of
the policy shall be paid and distributed by order of the court as hereinafter provided. In
the event that the notice has not been received by the insurance company before payment
of the policy proceeds, the insurance company shall be fully and finally discharged and
released from any and all responsibility under the policy to the extent that the policy
proceeds have been paid. The named beneficiary, the insurance company, or any other
party claiming an interest in the policy proceeds may commence an action in the district
court to compel payment of the policy proceeds. The court may order the insurance
company to pay the policy proceeds to any person equitably entitled thereto, including
the deceased insured's spouse, children, issue, parents, creditors, or estate, and may order
the insurance company to pay the proceeds of the policy to the court pending the final
determination of distribution of the proceeds by the court. The insurance company, upon
receipt of a court order, judgment, or decree ordering payment of the policy proceeds,
shall pay the policy proceeds according to the terms of the order, and upon payment of
such proceeds according to the terms of the court order, shall be fully and completely
discharged and released from any and all responsibility for payment under the policy.
new text end

new text begin (d) This section does not affect the rights of any person who, before rights under this
section have been adjudicated, purchases property from the person who committed an act of
financial exploitation consistent with this section, and did not have notice that the property
would not have been acquired except for this section, but the person who committed the act
of financial exploitation is liable for the amount of the proceeds or the value of the property.
Any insurance company, bank, or other obligor making payment according to the terms of
its policy or obligation is not liable by reason of this section, unless prior to payment it has
received at its home office or principal address written notice of a claim under this section.
new text end

new text begin (e) If a complaint or indictment is issued charging a defendant with the crime of
financial exploitation of the decedent, the personal representative, special administrator, or
an interested person may file with the court a copy of the complaint or indictment and
an inventory of the decedent's personal property that may be affected by a determination
under this section, including the following:
new text end

new text begin (1) personal property that is the subject of a specific devise under the decedent's will
or separate writing under section 524.2-513;
new text end

new text begin (2) exempt property identified in section 524.2-403;
new text end

new text begin (3) personal property claimed to have sentimental value to an eligible child under
section 525.152; or
new text end

new text begin (4) any other personal property believed, in good faith, to belong to the decedent.
new text end

new text begin The person filing the inventory shall attest that the inventory is correct and complete
to the best of the person's knowledge. The inventory and affidavit shall be filed with
the court administrator.
new text end

new text begin (f) Upon motion of the personal representative, special administrator, or an interested
person, and for good cause shown, the court may issue an order regarding property
identified under paragraph (e) that includes any or all of the following relief:
new text end

new text begin (1) reserving a determination of distribution of property;
new text end

new text begin (2) holding the property in trust or escrow for any and all beneficiaries or heirs
not disqualified by this section;
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new text begin (3) prohibiting the sale, disposition, removal, transfer, or destruction of the property;
new text end

new text begin (4) permitting the sale, disposition, removal, or transfer of property jointly held by
the decedent and a person disqualified under this section only to the extent necessary for
reasonable and ordinary living expenses by the disqualified individual, subject to approval
and on the terms the court deems just and proper; or
new text end

new text begin (5) any other relief prescribed by the court.
new text end

new text begin An order may be granted without notice to other interested persons if the court finds from
affidavit or other sworn testimony that the rights of decedent's heirs and beneficiaries may
be irreparably harmed before a hearing can be held. If an ex parte order is granted, notice
must be given to interested persons known by the court and as the court directs within 48
hours of issuing the order and the court shall hold a hearing within five days of issuing the
order. In all other cases, reasonable notice of the time and place of hearing on the petition
must be given to interested persons known by the court and as the court directs. An order
issued under this paragraph shall be effective pending a final determination under this
section, unless the court specifies a shorter time period or rescinds the order.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective on August 1, 2017, and applies to
probate cases filed on or after that date.
new text end