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«This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF ...»

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We evaluate a probate court’s findings concerning wills and trusts under a clearly erroneous standard, and we review its conclusions of law de novo. In re Trust Created Under Agreement with Lane, 660 N.W.2d 421, 425-26 (Minn. App. 2003) (citation omitted). “A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made.” In re Estate of Neuman, 819 N.W.2d 211, 215 (Minn. App. 2012) (citation omitted).

I. Homestead Status of Cooperative Share The PR argues by cross-appeal that the probate court erred in determining that the cooperative share is a homestead under Minn. Stat. § 524.2-402 (2014). The term “homestead” is not defined in that statute or elsewhere in the Uniform Probate Code.

However, the statute provides that homestead includes a “manufactured home which is the family residence.” Id. (a). Homestead is also referred to as “real estate.” Id. (b) (stating that the “homestead... descends as other real estate”). Moreover, Minnesota cooperative law recognizes cooperative shares as real property in some instances, see Minn. Stat. § 515B.3-116(h)(2) (concerning foreclosure of association’s lien where “unit owners’ interests are real estate”), and as personal property in other instances, see Minn. Stat. § 515B.3-116(h)(3) (concerning foreclosure of association’s lien where “unit owners’ interests are personal property”).

“[T]he underlying rationale of [Minn. Stat. § 524.2-402 is] that ‘the surviving spouse and children have an emotional attachment to their home and a strong economic interest in either its continued occupancy or its availability as an asset.’” In re Estate of Bonde, 694 N.W.2d 74, 77 (Minn. App. 2005) (quoting In re Estate of Riggle, 654 N.W.2d 710, 714 (Minn. App. 2002)). We have previously looked to debtor-creditor law in considering whether property has homestead status for purposes of treatment of that property under the probate code, because debtor-creditor law “more closely parallels the objective of the probate code provisions for descent of the homestead.” Id.2 Minn. Stat. § 510.01 (2014) defines a homestead as “[t]he house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated to the amount of area and value hereinafter limited and defined....” We note that the probate court considered Minnesota’s tax statutes rather than debtorcreditor law to determine the homestead issue. Our review is de novo and we give no deference to the probate court’s legal analysis, which departs from Minnesota’s debtorcreditor homestead law.

Minnesota appellate courts have historically taken a liberal view concerning homestead claims. See, e.g., Denzer v. Prendergast, 267 Minn. 212, 126 N.W.2d 440 (1964) (holding that an owner of a remainder in fee subject to a life estate is entitled to an exemption when he is in possession of the house under an oral agreement); In re Emerson, 58 Minn. 450, 60 N.W. 23 (1894) (holding that a person with a leasehold interest is entitled to the exemption when in possession during his tenancy); Kaser v. Haas, 27 Minn. 406, 7 N.W. 824 (1881) (holding that an owner with an undivided interest in land occupied as a homestead is entitled to the homestead exemption); Cargill, Inc. v. Hedge, 358 N.W.2d 490, 492 (Minn. App. 1984) (holding that individuals are entitled to claim a homestead exemption against land assigned to their family farm corporation), aff’d, 375 N.W.2d 477 (Minn. 1985).

Members in the cooperative where decedent lived hold shares in the cooperative corporation and have an occupancy agreement (comparable to a lease) for the individual dwelling unit. That members occupy units under a lease arrangement is not inconsistent with the units’ status as homesteads. The Minnesota Supreme Court has determined that an individual who holds a leasehold interest and resides on the property is entitled to the homestead exemption. Emerson, 58 Minn. at 453, 60 N.W. at 23. There is no dispute that decedent resided in her cooperative unit for many years until her death. It is also undisputed that appellant and Nicolas Allard have a “strong economic interest in... [the cooperative share’s] availability as an asset.” Bonde, 694 N.W.2d at 77. Moreover, and mindful that Minnesota tax statutes are not determinative of this issue, it is notable that Minn. Stat. § 273.124 (2014) grants homestead status to cooperative units occupied by the shareholder.

Based on the record in this case, the PR has not shown that the district court erred in treating decedent’s cooperative share as a homestead under the Uniform Probate Code.3 II. Jurisdiction to Address the Homestead Property Appellant argues that the probate court lacked jurisdiction over the disposition of the cooperative share because it is a homestead property under Minn. Stat. § 524.2-402.

Although appellant did not raise this argument before the probate court,4 and although the probate court did not address the issue in the appealed-from order, appellant appears to be arguing that the probate court lacked subject-matter jurisdiction. Because subject-matter jurisdiction goes to a court’s authority to hear a particular class of actions, lack of subjectmatter jurisdiction can be raised at any time, including for the first time on appeal. Minn.

R. Civ. P. 12.08(c); Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.





App. 1995), review denied (Minn. May 31, 1995).

We review legal issues concerning jurisdiction de novo. McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997). Here, The PR asks us to issue a rule of general future application regarding the homestead status of all cooperative units. Whether other cooperative units are properly to be treated as homestead property is not before us. Here, he PR has not affirmatively demonstrated error in the probate court’s determination that this particular unit was decedent’s homestead. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (“It is well to bear in mind that on appeal error is never presumed. It must be made to appear affirmatively before there can be reversal.”). We limit our holding to the facts of this case.

To the contrary, appellant repeatedly requested that the district court address the cooperative share.

however, there is no merit to appellant’s position. An interest in a homestead, remainder or otherwise, is clearly subject to the jurisdiction of the probate court. See Minn. Stat.

§ 524.2-402(a) (providing for probate disposition of homestead property); Bengtson v.

Setterberg, 227 Minn. 337, 357-58, 35 N.W.2d 623, 635 (1949) (stating that a probate court has jurisdiction over homestead property). Therefore, the probate court did not lack subject matter jurisdiction to address the homestead property.

III. Expenses Charged against the Homestead Exemption Appellant also argues that the probate court erred in permitting administrative costs to be charged against the exempt homestead property. Minn. Stat. § 524.2-402(c) provides that

–  –  –

(Emphasis added.) Here, the probate court did not expressly permit administrative costs to be charged against the cooperative share. However, the cooperative share’s value of $35,910 at the date of the sale was reduced by charges levied by the cooperative community after November 2009. These post-death charges were not “valid charges... at the time of decedent’s death.” Id.; see, e.g., Matter of Estate of Peterson, 365 N.W.2d 300, 302-03 (Minn. App. 1985) (holding that a bank’s advance of $8,420.12 to cover taxes and insurance to protect the homestead during probate “is the responsibility of the estate, not the beneficiary”). Therefore, we must reverse the probate court’s homestead disposition and remand for the probate court to distribute the cooperative share’s value under Minn.

Stat. § 524.2-402(c). It is for the probate court on remand to determine the precise distribution. The probate court may, in its discretion, reopen the record.5

–  –  –

Appellant argues that the probate court misconstrued decedent’s will. The legal construction of an unambiguous written document is reviewed de novo. In re Trust Created by Hill, 499 N.W.2d 475, 482 (Minn. App. 1993), review denied (Minn. July 15, 1993).

“The primary purpose of construing a will is to discern the testator’s intent.” In re Estate & Trust of Anderson, 654 N.W.2d 682, 687 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003). “[W]e determine the testator’s intent from a full and complete consideration of the entire will.” In re Estate of Lund, 633 N.W.2d 571, 574 (Minn. App.

2001); see In re Shields, 552 N.W.2d 581, 582 (Minn. App. 1996) (“In construing a will, the cardinal rule is that the testator’s intention is to be gathered from the language of the will itself.”), review denied (Minn. Oct. 29, 1996).

–  –  –

Appellant also asserts that she is entitled to “restitution” concerning the homestead, an assertion unsupported by any legal authority. The probate court’s denial of “restitution” relative to the homestead is affirmed.

In re Trusts A & B of Divine, 672 N.W.2d 912, 917 (Minn. App. 2004). A will is ambiguous if “the language of the will, on its face, may suggest more than one interpretation,” or if, despite being clear on its face, “surrounding circumstances reveal more than one construction.” In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985).

Here, the will by its terms gives “equal shares” to decedent’s surviving children in “the interest [she] may have in household goods and furnishings, books, works of art, jewelry, articles of personal use, automobiles, and all other tangible personal property not otherwise disposed of by this Will.” The will further gives decedent’s residuary estate in equal shares to the surviving children.

Appellant appears to argue that the probate court erred in allowing the PR to conduct an estate sale before which the beneficiaries could “purchase” items. The estate’s attorney testified that the process used by the PR is customary in similarly modest estates. The presale was intended to allow the beneficiaries to “purchase” items for a determined value to assist in equalizing the overall distribution of personal property. Because the estate was solvent at the time of the initial proposed estate sale in January 2011, any payments the beneficiaries made or owed for such items would be accounted for in the final account and in the final distribution.

Appellant also appears to argue that the probate court erred in determining that the personal property items she requested were “sentimental property” pursuant to Minn. Stat.

§ 525.152(3)(b) (2012), which would require her to pay for the selected items or deduct the value of the items from her share of the estate. Minn. Stat. § 525.152(5)(a). However, appellant herself petitioned for the items to be considered sentimental property. Appellant also waived this issue by taking the exact opposite position before the probate court to the position she now takes on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating both that this court will not address matters not argued to or considered by the district court and that a party cannot argue a new theory on appeal).

Appellant also ignores the section of the will directing the executor or a courtappointed PR to pay all “funeral expenses, expenses of last illness, other claims allowed in the administration of [the] estate and... all death taxes of any character, including interest and penalties....” (emphasis added). This section corresponds with Minn. Stat. §§ 524.2e) and 524.3-805(a)(1-7) (2014), which provides that the rights of adult children to the personal property exemption are subject to the costs and expenses of administration, debts, and taxes. The will itself also directs the PR to “satisfy all gifts contained in this Will as soon as deemed convenient.” Here, the PR was unable to “satisfy all gifts” quickly due to appellant’s objection to her appointment, appellant’s removal of a significant amount of decedent’s personal property, and appellant’s lengthy delay in returning that property. The probate court did not err in subjecting decedent’s personal property to the estate’s administrative expenses.

The probate court found that the estate incurred the following expenses:

(1) $43,416.39 to the estate’s attorney (plus $242.11 as a pre-death expense); (2) $8,284.50 to the estate’s secondary attorney; (3) $13,550.50 to the PR; (4) $2,350 to the accounting firm; (5) federal taxes of $3,694; and (6) state taxes of $864, for a total of $72,401.50. On appeal, appellant does not challenge the amount of these expenses. She argues only that they were unnecessarily incurred because of the PR’s “multiple breaches of fiduciary duties” and “uber-aggressive constant litigation with [appellant]” to “run[] up the costs of administration [and do] every other conceivable thing to enlarge their fees to the tune of bankrupting the estate and making the beneficiaries pay them even more.” As discussed below, the probate court did not clearly err in determining that the PR did not breach her fiduciary duties. Further, and considering appellant’s own testimony that she incurred $217,926.26 in legal fees during the course of all of this, the probate court did not err either in determining that the estate administration’s much smaller total expenses were reasonable or in interpreting the will as requiring payment of those expenses before the division of the remaining property.

V. Breach of Fiduciary Duties and Improper Liquidation of Assets Appellant argues that the district court clearly erred in finding that the PR had not breached any fiduciary duties or improperly liquidated assets.6 A PR owes a fiduciary duty to the estate. Minn. Stat. § 524.3-703(a) (2014). As such, she must manage the estate’s assets under the level of care of “a prudent person dealing with the property of another.” Id. This requires a PR to settle and distribute the estate according to the testator’s will and in the best interests of the estate. Id.

Whether a fiduciary duty has been breached is a question of fact. See, e.g., Commercial Assocs., Inc. v. Work Connection, Inc., 712 N.W.2d 772, 778 (Minn. App.



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