by Boyd Johnson on November 13, 2008
This summer the Commissioners on Uniform State Laws convened to finalize 2008 amendments to the Uniform Probate Code for recommendation to the states. You can view the 2008 approved amendments (red-line version) by clicking here.
It will be interesting to see whether Minnesota’s legislature adopts any of the new amendments. I’ve heard rumblings that “change is on the way” for parts of Minnesota’s probate code, but I don’t know anything specific. I would think that first up for change would be adjusting some of the amounts listed in the statutes for inflation.
One of the most interesting amendments to the UPC is that a will could either be signed by two witnesses or notarized. The comments to that amendment cite reduction in “confusion and chance for error” if all estate planning documents (e.g., power of attorney, health care directives) were executed with similar formalities. The comments also state that lay people often mistakenly assume that a notarized (but not witnessed) will is valid anyway.
Let me be clear that I’m speaking of the UPC here, not Minnesota’s version. No changes like this have been made to the Minnesota statutes– Minnesota still requires two witnesses. I hope that Minnesota does not end up adopting the notarized will amendments. Challenges to the testamentary capacity of the testator would certainly increase. It would be exchanging reduction in “confusion and chance for error” for increased litigation.
Categorized in Commentary,In the News and tagged as execution, notarization, probate code, UPC, wills, witnesses
by Boyd Johnson on September 15, 2008
What happens when a Will specifically devises real property to a person but the real property is mortgaged?
Under Minnesota statutes, the devise passes subject to the mortgage interest existing at the date of death.
What if the Will has a clause that says something like, “I direct that my just debts allowed in the course of administration of my estate be paid by the Personal Representative from the residue of the estate”? Would the Personal Representative then be required to pay off the mortgage from the residue and deliver the real property to the devisee free from the mortgage?
No, the devise passes subject to the mortgage regardless of a general directive in the Will to pay debts.
See Minn. Stat. 524.2-607.
Categorized in Practice Tips and tagged as debts, exoneration, mortgage, nonexoneration, probate, real property, specific devise, wills
Are Amendments to Minnesota’s Probate Code Coming?
by Boyd Johnson on November 13, 2008
This summer the Commissioners on Uniform State Laws convened to finalize 2008 amendments to the Uniform Probate Code for recommendation to the states. You can view the 2008 approved amendments (red-line version) by clicking here.
It will be interesting to see whether Minnesota’s legislature adopts any of the new amendments. I’ve heard rumblings that “change is on the way” for parts of Minnesota’s probate code, but I don’t know anything specific. I would think that first up for change would be adjusting some of the amounts listed in the statutes for inflation.
One of the most interesting amendments to the UPC is that a will could either be signed by two witnesses or notarized. The comments to that amendment cite reduction in “confusion and chance for error” if all estate planning documents (e.g., power of attorney, health care directives) were executed with similar formalities. The comments also state that lay people often mistakenly assume that a notarized (but not witnessed) will is valid anyway.
Let me be clear that I’m speaking of the UPC here, not Minnesota’s version. No changes like this have been made to the Minnesota statutes– Minnesota still requires two witnesses. I hope that Minnesota does not end up adopting the notarized will amendments. Challenges to the testamentary capacity of the testator would certainly increase. It would be exchanging reduction in “confusion and chance for error” for increased litigation.
Categorized in Commentary,In the News and tagged as execution, notarization, probate code, UPC, wills, witnesses
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