Probate and estate law attorneys should be aware of new legislation recently signed into law. Highlights of the new laws (currently found in Session Law 334, S.F.No. 2427) fall under three topics.

I. Estate tax issues

Given the temporary repeal of the federal estate tax in 2010 and the uncertainty of whether Congress will act prior to the reinstatement of the estate tax in 2011, the Minnesota Legislature wisely acted to mitigate some of the resulting unintended consequences. Section 291.03 of the Minnesota statutes was amended to add a method of electing qualified terminable interest property (QTIP) in 2010 even in the absence of filing a federal estate tax return, where the election would normally be made. Section 524.2-712 was added to deal with references in instruments such as wills and trusts to currently repealed sections of the Internal Revenue Code and to clarify the interpretation of estate tax formulas and terms in those instruments during 2010.

II. Emergency and temporary conservators

The amended Minn. Stat. § 524.5-409 provides courts the authority to appoint emergency and temporary conservators—a legislative improvement long overdue. These provisions bring conservatorships in line with guardianships, where the appointment of an emergency or temporary guardian has been permissible for some time. The procedure for appointing an emergency or temporary conservator is similar to the guardianship procedures found in Minn. Stat. §§ 524.5-311 to 312.

III. Parent-child relationships in the probate code

The most extensive changes to the Minnesota probate code deal with defining parent-child relationships for intestate succession purposes. The changes focus on adoption and assisted reproduction, particularly in non-traditional families.

Arguably, these statutes are the most important changes to the probate code in the last few years. Yet despite their overwhelmingly strong support in both bodies of the Minnesota Legislature, the new statutes may cause controversy among probate attorneys. Critics will be quick to point out that one simple section in the probate code dealing with parent-child relationships has now ballooned to eight substantially more complex sections. Probate attorneys will need to review the statutes carefully and become familiar with new terms and family law concepts. Nevertheless, given the rising prevalence of non-traditional families, even critics will appreciate the clarity (albeit, complexity) that the statutes provide in many of these situations.

In brief, the new statutes include the following:

• Fourteen new definitions related to adoption or assisted reproduction. (Section 524 .1-201)
• A new section barring parents from inheriting from or through a child if parental rights have been terminated or if, with certain limitations, the parental rights of the parent could have been terminated. (Section 524.2-114)
• The establishment of a parent-child relationship in certain adoption situations even where one of the adopting parents dies prior to the completion of the adoption. (Section 524.2-118)
• More robust provisions regarding the relationship between an adoptee and the adoptee’s genetic parents. (Section 524.2-119)
• Extensive provisions covering children conceived by assisted reproduction. (Section 524.2-120)

The estate tax and emergency conservator provisions are already in effect. Thankfully, the changes to the parent-child relationship provisions are effective August 1st, giving attorneys time to prepare.

Tips on How to Prepare for the Changes

• Read the new statutes. The red-lined version of the session law can be found at the Revisor of Statutes website. Be sure to note the new definitions found in Section 524.1-201 (e.g. “functioned as a parent of the child”, “intended parent”, “relative”, “third-party donor”).
• Revise your intake questionnaires. If your probate and estate planning questionnaires don’t already contemplate children by adoption in non-traditional families and children of assisted reproduction, take time to do so now.
• Family law and probate attorneys:  take each other out to lunch. There has always been a nexus between family law and probate law, and now more than ever. Family law attorneys will need to understand the implications of adoption and assisted reproduction with respect to inheritance issues. Probate attorneys will minimally need to become more familiar with the process of adoption.
• While you’re at it, take a litigator to lunch. There are a few areas in the new statutes that will invite litigation. For example, consider that under Section 524.2-118, the phrase “in the process of being adopted” could permit an individual to be treated as a child of a deceased-but-not-yet-adoptive parent for intestate succession purposes, even where no petition for adoption has been filed. Another example is language under the new 524.2-114. In that section, a parent could be barred from inheriting from a child if the child dies before reaching age 18 and there is clear and convincing evidence that the parental rights of the parent “could have been terminated under law of this state” immediately before the child’s death. Note that the statute says “could have been terminated” not “would have been terminated.” The statute then lists potential grounds for the hypothesized termination of parental rights. Finally, note the inclusion in Section 524.2-120 of a new concept to Minnesota probate law: rights given to a man who functioned as a parent of the child or intended to function as a parent of the child. Granted, these examples apply only to very limited situations, yet they will surely be future sources of heated litigation. Be sure to read the statutes carefully,
• Consider making the new parent-child probate statutes your niche. Many attorneys have found that focusing on a niche area of the law has helped their law practice grow. In years past, probate was a niche practice. That might not be the case anymore. Particularly in the Twin Cities, a practice merely focusing on probate may be too broad to be considered a niche now that so many attorneys practice in this area. With the new legislation, there is an opportunity for an attorney (or firm) to become very well-versed in these statutes and focus their practice on probates involving these issues.

Sooner or later, if you practice much in the areas of probate or estate law, you’ll encounter the issues addressed by the new statutes. Take time to study these new laws in order to be prepared to effectively counsel your clients when the issues arise.