Transfer on Dead Deed (TODDs)











Perspectives of Transfer on Death Deeds (TODDs)

You have considered adding a Transfer on Death Deed (known as “TODD”) into your estate plan. What other consideration must be made to fully understand the purpose and utilization of this transfer vehicle? We will cover the relationships that a TODD will have with your estate plan and the beneficiaries down the road upon the Grantor Owner’s death.


Factors to Consider When Executing TODDs

If the real property being transferred by a TODD is held by joint tenants, then all of the joint tenants should execute the TODD, or in short, the surviving joint tenant should execute the deed. This explains the significance of knowing the proper title holding of your real property, whether it is held in joint tenancy or as tenants in common. Under the Minnesota Statute governing the TODD vehicle (Minnesota Statutes § 507.071), there are informative guidelines regarding the situation of having your designated “attorney-in-fact” execute a TODD on your behalf. If a TODD is executed by a Grantor’s attorney-in-fact as designated within a Power of Attorney, an estate planning tool to plan for incapacity, the TODD must include authorization for the attorney-in-fact to execute deeds and also, if applicable, the authorization to “make gifts” to him/ herself, as directed under a Power of Attorney.

Recording TODDs

Firstly, a TODD transfer of real property is effective only if it is recorded prior to the death of the last surviving Grantor Owner and recorded in the County where the real property is located. In addition, TODDs and Medical Assistance It is important to remember that the Minnesota Statute governing TODDs is not a Medical Assistance avoidance tool. In order to effectuate a TODD, one must file certain documentation in connection with Medical Assistance, including:

  • an Affidavit of Identity and Survivorship for Transfer on Death Deed
  • a certificate of death
  • and a certificate of clearance from the Minnesota Department of Human Services.

These documents are necessary to prove that no claims for Medical Assistance exist, which may be tied to the grantor owner’s interest in the real property. Most importantly, a TODD has absolutely no effect on determining a person’s eligibility for Medical Assistance.

Using TODDs with Trusts

A TODD deed may transfer an interest in real property to the trustee of a living trust. For instance, a revocable trust, a testamentary trust created under a Will, or any other entity legally qualified to hold title to real property under Minnesota law.

Enforcement of TODDs

Any matter raised in connection with enforcement of a TODD deed shall be determined in the probate court division. However, if you are concerned with creditor issues, creditors cannot attach to a Grantee Beneficiary’s interest in the real property until after the Grantor Owner dies.

Above all, if you wish to discuss your questions concerning the Transfer on Death Deed (TODD) or wish to speak to an attorney about your estate planning needs, please contact Tina M. Johnson, RP® of Kennedy Law Office: 651-262-2080 or


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Objecting to a will is referred to as contesting or disputing a will. Wills are handled by the probate court. Depending upon what county the decedent died in, the probate court might operate differently. Some counties have a judge team that is solely dedicated to probate and other counties have judges that rotate through probate hearings.

In order to contest or object to a will, it is important to know if the will has been filed with the court. The will could have been filed with the court while the decedent was still alive. This is known as filing a will for safekeeping. If a will is filed for safekeeping, the only way court administration can verify the existence of the will is with proof of the decedent’s death either through a death certificate or an obituary. It’s important to call probate administration ahead of time to verify the county’s exact procedure as it may vary slightly from county to county.

More commonly, the will will be filed with the court concurrently with a petition to probate the will. If this has happened, someone is asking to be appointed as the personal representative of the decedent’s estate. A hearing will be scheduled on this petition. All interested persons must receive notice of this hearing. An interested person is defined by Minn. Statute 524.1-201(33). Notice of the hearing must also be published in a legal publishers in the county where the hearing is being held. For a list of legal periodicals by county, click here.

Wills should be objected to by filing a written objection with court administration. It’s important to consult with an experienced probate attorney. To set up a free appointment for probate litigation consultation, please call 651-262-2080 or email


An inventory is filed after the personal representative is appointed. The inventory states the assets and debts of the decedent. An accounting is filed when the personal representative is ready to close the estate. The accounting shows how the assets of the decedent were spent and/or distributed.

Assets that are typically listed are: a home, vehicles, retirement accounts, bank accounts, and insurance. If the home is held in joint tenancy with a surviving spouse, the home is likely a non-probate asset. Non-probate assets are not included in the probate. For questions on what needs to be included or what is a probate asset, contact an experienced probate attorney.

Once the court appoints a personal representative the personal representative has the duty to discover and disclose all of the assets and debts of the decedent. Minn. Stat. 524.3-706 states the personal representative has six months to do this. However, this deadline can vary. If you are a personal representative, it is important that you know when your inventory is due. Once the personal representative discovers the assets, s/he should create an inventory. The inventory should be shared with the interested persons of the estate. The inventory must be filed with the court.

Finally, when the personal representative is ready to close the estate, s/he or she will need to file an accounting. The accounting should details how the assets of the decedent were spent and distributed. Again, the accounting should be shared with all interested persons. This allows the court to ensure that the assets of the decedent were properly spent and distributed. If someone disagrees with the final accounting, they can file an objection.

For questions about inventories, accountings, demanding a copy, or objections – please contact Kennedy Law Offices, P.A. ph: 651-262-2080 or email:

Ancillary probate occurs when a decedent owned property outside the state where they lived. For example, if you live in Minnesota but have a cabin in Wisconsin, you might open the doors to an ancillary probate proceeding.

The problems exist because the laws of the state where the property is physically located govern the property. In the example listed above, Minnesota governs the decedent’s estate. However, the cabin in Wisconsin cannot be governed by Minnesota because it is physically located in Wisconsin.

Property owned in another state doesn’t just have to be real property (cabin, beach home, or business), it could also be tangible personal property such such as vehicle or boat if those items are titled in another state.

The best way to handle owning out of state property is proper titling. It’s important to sit down with an experienced estate planning attorney to ensure that your property is correctly titled.

Handling an ancillary probate proceeding can be costly due to multiple court filing fees and additional administration fees. To ensure an ancillary probate proceeding is handling correctly, meet with an experienced probate attorney.

For additional questions on probate or titling, contact Kennedy Law Offices, P.A. Ph: 651-262-2080 or email:

Conservatorship, also known as guardianship over the estate, is when a judge appoints a conservator to manage the financial affairs of another due to age or mental incapacity. In Minnesota, once someone has a conservator appointed over their financial affairs, they are referred to by the court as a protected person.

Keep in mind, that a conservator is appointed to manage the finances of an individual. A guardian is appointed to manage the day to day living of an individual. To attend a doctor’s appointment for someone, you likely need proof of guardianship. To go to the bank for someone, you likely need proof of conservatorship.

A typical situation where the court appoints a conservator for someone is when a minor inherits a sum of money. For example, if a grandparent passes away and names their minor grandchild as the beneficiary of their life insurance policy, the company who issues the check will likely ask for proof of conservatorship. The reason companies ask for this proof is because they want to ensure that the money is going to the minor and not to the minor’s parent.

Another situation where conservators are typically appointed are to manage the finances of someone who is elderly and has diminished capacity. Bills and mortgages still needs to paid despite a diagnosis of Alzheimers or dementia. By appointing a conservator, someone can act on the individual’s behalf.

Once someone is appointed a conservator, the work doesn’t end. Within sixty (60) days of appointment, the conservator must submit an inventory to the court. The inventory will be audited. Every year on the anniversary of the conservator’s appointment, the conservator must file an accounting of how all of the money was handled. This accounting will be audited. If the judge approves the audit, the accounting will be allowed. A judge can order that a conservator correct an accounting.

For questions regarding how to file a petition for conservatorship, how to avoid conservatorship, getting accountings waived, and/or what conservatorship does, contact Kennedy Law Offices, P.A. for a free consultation.

Guardianship is necessary when someone is considered an incapacitated person. Someone does not have to be a minor to have a guardian. Guardians are appointed to people of all ages, demographics, and financial backgrounds.

To file for guardianship, a petition must be filed with the court. Guardianship hearings require a mandatory court appearance

There are two parties in a petition: (1) the petitioner and (2) the respondent. The petitioner is the person asking for the guardianship. The respondent is the individual who allegedly needs to be under guardianship. If the court grants the guardianship, the respondent will be referred to as the ward.

Guardianship hearings require a mandatory court apperance. The respondent’s appearance can be waived through a physician.


Notice of the guardianship hearing must be provided to anyone who is considered an interested person. An interested person could be a family member, hospital administrator, family friend, ect…  If anyone wants to object they can do so. Objections can be filed into the court record before the hearing or someone can show up to the hearing and object in person.

Letters of Guardianship:

Before the hearing a proposed Order Granting Guardianship and Appointing Guardian should be filed. Proposed Letters of Guardianship should also be filed.  If the judges agrees that a guardian should be appointed and all statutory required documents have been filed, the judge will likely sign the order and letters. Letters is a deceiving term because it refers to a document not letters between parties. The Letters is the document that the guardian can show to banks, doctors, and other entities. Letters are the document with the power.

It’s important to note that each case is unique.

The court may appoint a court visitor to visit the respondent at his or her home before the hearing. If this happens, the court visitor will file a report with the court that details the visit. The court might also require that the proposed guardian have a background report completed and put on file with the court.

Fee Waivers:

A lot of people are concerned about the cost of filing a case with the court. Whether or not someone can afford to file a guardianship petition with the court is based upon the respondent’s income. For example, if the respondent has disabilities that prohibits them from working, the court can make a finding that the county will pay all court filing fees and even attorney’s fees.

For questions about filing a guardianship petition or the fee waiver process, please contact Kennedy Law Offices, P.A. via phone (651-497-6202) or email (

After someone passes away, their bills are still there, waiting to be paid. Paying these bills can be particularly tricky when an estate is insolvent. An insolvent estate means that there isn’t enough funds in the estate to pay all of the deceased’s debts.

The personal representative, also known as the executor or estate administer, is in charge of paying the decedent’s bills. The personal representative must pay the bills in a particular order that is mandated by Minnesota law. If the personal representative doesn’t pay the bills in this order, he or she could be held personally liable. The personal representative should consult with an experienced probate attorney to ensure they are compliant.

Minnesota Statute 524.3-805 lists the order of priority for what expenses need to be paid.

The order of priority is:

  1. The costs and expenses of administering the estate (this includes court filing fees);
  2. Reasonable funeral expenses;
  3. Debts and taxes under federal law;
  4. Reasonable and necessary medical, hospital, or nursing home expenses that are associated with the deceased’s last illness (this includes medical assistance claims);
  5. Reasonable and necessary medical, hospital, or nursing home expenses that are associated with the deceased’s last year of life;
  6. Debts and taxes under state law; and
  7. All other claims against the estate.

For any questions regarding the decedent’s debts or solvency, please reach out to Kennedy Law Offices for a free consultation. Phone number: 651-262-2080 or email:

A personal representative (“PR“), also known as an executor or administrator, is in charge of handling the decedent’s estate. If someone has a will, they most likely named who would they wanted to act as their PR/executor/administrator. Furthermore, a lot of wills also spell out a secondary choice for personal representative if the first pick is unable or unwilling to act. If the decedent didn’t have a will, one of the decedent’s heirs or an interested party will have to petition the court to be appointed. It’s important to keep in mind that just because the decedent named someone as the PR/executor/administrator in their will doesn’t mean there won’t be a need to go through the probate court. To learn more, see our previous post titled: What is Probate?

What’s does the PR/Executor/Administrator do?

First, the PR must determine who the interested parties are so that they can be served notice. Next, the PR must gather information about the decedent’s assets. On top of that, the PR should also gather information about all of the decedent’s debts. This information will be used to supply the court with an inventory. After this, there is typically a hearing to appoint the PR. At this time, a judicial order and letters are issued. The personal representative is responsible for paying the creditors of the decedent. However, the PR must also ensure the decedent’s distributions are followed according to the will. Meet with a probate attorney to learn if all bills need to be paid. The probate process varies but typically takes about a year.

How do I prove that I’m the PR/Executor/Administrator?

A court appointed personal representative receives Letters Testamentary (if the decedent had a will) or Letters of General Administration (if the decedent didn’t have a will). Typically creditors require “certified” Letters which come from the court with a stamp and embossed seal.

Judges or Registrars issue Letters. The process involves filing a petition, serving notices, possibly attending a hearing, and filing an acceptance and oath. Sit down with a probate attorney to learn more about doing probate correctly.

For a free consultation regarding probate, please call 651-262-2080 or email:

For a list of common probate definitions, read more here.

What is Probate?

A common misconception is that if a person has a will, their family will not need to go through the probate court upon that person’s passing. Whether or not someone has a will does not determine the need to go through the probate court. The need is determined by how the person’s assets are held and designated to be distributed at the time of their death.

What does the probate court process look like?
If you need to go through probate, one of the first things that you’ll have to determine is if you’ll be filing for formal probate or informal probate. An experienced probate attorney can held you decide which way is the best way to proceed based on individuals factors that may include: potential creditors, possible disputes, and what assets the decedent had.

Informal probate: You’ll file an application to appoint a personal representative to the probate registrar. The probate registrar has extensive training on probate matters. The registrar will review your application and the will and decide whether or not it’s appropriate to accept your application. If the registrar does not accept your application, you’ll have to proceed through formal probate. There are no court hearings if you file informally. It’s important to keep in mind that a probate registrar will sign the documents appointing you as personal representative, not a judge. An experienced probate attorney can assist you to ensure it’s okay to use a registrar and not a judge.

Formal probate: You’ll file a formal petition to appoint a personal representative to a judge. Some counties have special probate judges, other counties judges operate on a rotation. With formal probate, there is a court hearing that appoints the personal representative. In some counties, it’s mandatory to appear at this hearing, in other counties you do not need to appear unless you anticipate that someone will be objecting to your appointment. If there are no objections, you’ll be appointed as the personal representative and receive certified documents that allow you to access the decedent’s assets.

How can probate court be avoided?
The best way to avoid the need for your loved ones to go through the probate court, is by sitting down with an experienced estate planning attorney. Throughout the estate planning process, an experienced estate planning attorney should locate all of your assets and ensure that they are properly held to avoid the probate court. The attorney can assist you in beneficiary designations as well as drafting a will that is validly executed and nominates a personal representative (also known as an executor) of your estate.

The second way to avoid the probate court is if Minnesota Statute § 524.3-1201 applies to the decedent’s estate. This statute states that if the probate asset that is improperly held is not greater than $75,000 then the need to go through the probate court is avoided. Instead, a blood relative or a person with legal interest in the decedent’s property can fill out an Affidavit for Collection of Personal Property. The Affidavit allows you to recover the improperly held asset.

For any additional questions regarding probate or estate planning, please feel free to reach out via telephone (651-262-2080) or via email (