Death Transfers of Minnesota Cemetery Lots is achieved under Minnesota law like no other probate transfer.

Death Transfers of Minnesota Cemetery Lots

Death Transfers of Minnesota Cemetery Lots

 And after this, Abraham buried Sarah his wife in the cave of the field of Machpelah before Mamre: the same is Hebron in the land of Canaan.

And the field, and the cave that is therein, were made sure unto Abraham for a possession of a burying place by the sons of Heth.

Genesis 23, Verses 19-20, KJV

Minnesota Cemetery Lots – Real Property

Both a Minnesota cemetery graveyard, and individual cemetery lots within the cemetery, constitute real property.

However, individual cemetery lots within a cemetery are treated under Minnesota law like no other real property.

If fee (simple) ownership in real property is defined as:

  • an inheritable interest in land,
  • which represents the greatest potential legal title available under the law,

then there is no fee simple title ownership of an individual cemetery lot within a Minnesota cemetery by anyone other than the public cemetery association, or private cemetery.

In 1961, the Minnesota Supreme Court variously described an individual’s ownership rights in a Minnesota cemetery lot as:

  • a special kind of conditional estate in fee,
  • a perpetual easement, or
  • a kind of perpetual license,

Erickson v. Sunset Memorial Park Ass’n, 1961, 259 Minn. 532, 108 N.W.2d 434.

Under the bundle of sticks analogy which underlies the analysis of Minnesota real property ownership, a person other than a Minnesota cemetery association or private cemetery holds only a few sticks in an individual cemetery lot, which may include the following:

  1. The right to be buried in the cemetery lot;

and

  1. The limited right to make a testamentary transfer of the cemetery lot to another individual, or to the public cemetery association or private cemetery in trust – for the use and benefit of any person or persons designated in the Will.

Death Transfers of Minnesota Cemetery Lots

The permitted disposition of a Minnesota cemetery lot upon the death of its registered owner – Death Transfers of Minnesota Cemetery Lots – is contrary to many of the normal assumptions and procedures that would be familiar to a Minnesota probate attorney.

The Magna Carta of Death Transfers of Minnesota Cemetery Lots, is found in M.S., Section 525.14Descent of Cemetery Lot.

Application of M.S., Section 525.14

Properly speaking, the Minnesota laws of intestate succession – which would be applicable when the decedent did not have a probated Will – are found in:

However, the provisions of M.S., Section 525.14 are often loosely identified as the rules of intestacy with respect to the rights in a Minnesota cemetery lot which are to be transferred upon the death of its registered owner.

Nevertheless, the provisions of M.S., Section 525.14 will be applicable to Death Transfers of Minnesota Cemetery Lots:

  • even if the decedent had a Will accepted for probate by Minnesota probate court,
  • providing that the proposed distribution of the Minnesota cemetery lot was not to a “qualified person”.

Therefore, the provisions of M.S., Section 525.14 are more properly identified as the rules of descent with respect to the rights in a Minnesota cemetery lot which are to be transferred upon the death of its registered owner – if they are not properly transferred pursuant to the terms of the decedent’s Will.

The provisions of M.S., Section 525.14 appear to be applicable to both Death Transfers of Minnesota Cemetery Lots for public cemeteries, and private cemeteries – by reason of:

  • the use in the statute of the term cemetery lot, and
  • various references in the statute to cemetery association, and private cemetery.

Cemetery Lot Property

M.S., Section 525.14 identifies that the term Minnesota cemetery lot includes certain above-ground structures, by providing in part as follows:

A crypt or group of crypts or burial vaults owned by one person in a public or community mausoleum shall be deemed a cemetery lot.

M.S., Section 525.14 also identifies that cemetery lot accoutrements will likewise be governed by the statute, by providing as follows:

Grave markers, monuments, memorials and all structures lawfully installed or erected on any cemetery lot or burial plot shall be deemed to be a part of and shall descend with the lot or plot.

Testamentary Devise of Minnesota Cemetery Lots

The registered owner of a Minnesota cemetery lot may make a limited testamentary devise of a cemetery lot located in either a public cemetery, or a private cemetery, pursuant to M.S., Section 306.29, which provides in part as follows:

An owner of a cemetery lot may dispose of the lot by will

  • to a relative who may be a survivor, or
  • to the cemetery association or private cemetery, as the case may be, in trust for the use and benefit of any person or persons designated in the will.

Will  Requirements

(i)      Specific Devise to One Surviving Relative

With respect to Death Transfers of Minnesota Cemetery Lots to anyone other than a public cemetery association or private cemetery, M.S., Section 306.29 identifies additional requirements with respect to:

  • the identity of the cemetery lot at issue, and
  • the intended devisee – who must be a surviving relative:

However, no lot may be affected by a testamentary devise unless the lot

  • is specifically mentioned in the Will and
  • limited by it to one particular person.

The requirement that the testamentary devise of a Minnesota cemetery lot be limited to a person specifically mentioned in the Will precludes any valid Death Transfers of Minnesota Cemetery Lots pursuant to any residuary clause in the Will.

The requirement that Death Transfers of Minnesota Cemetery Lots be specifically limited to one particular person (relative) precludes any valid disposition of a Minnesota cemetery lot to more than one person – other than a testamentary devise of a Minnesota cemetery lot to the public cemetery association or private cemetery:

  • in trust for the use and benefit of one or more persons,
  • who are specifically identified in the Will as the potential recipients of the right to be buried in the cemetery lot.

(ii)     Devise Must Generally be a Qualifying Relative

M.S., Section 306.29 further identifies that any Death Transfers of Minnesota Cemetery Lots must be made to a qualifying relative of the registered owner of a Minnesota cemetery lot – unless the written consent of the cemetery association or private cemetery is obtained – by providing in part as follows:

No interment shall be made in any lot, except by written consent of the cemetery association or private cemetery, as the case may be, of a person who was not at the time of death,

  • the owner of the lot or
  • a relative of the owner by blood or marriage.

Presumably the rules of the public cemetery association or private cemetery association would determine the qualifications for any such relative of the owner of the cemetery lot.

(iii)    Testamentary Devise of Cemetery Lot(s) in Trust

The registered owner of a Minnesota cemetery lot may make Death Transfers of Minnesota Cemetery Lots to the public cemetery association or private cemetery in trust – for the use and benefit of any person or persons designated in the Will.

Please note that if the registered owner of a Minnesota cemetery lot made a lifetime transfer of the cemetery lot to the public cemetery association or private cemetery in trust – it would be limited to a single person, since M.S., Section 306.29 provides in part as follows:

An owner of a cemetery lot may, while living, convey the lot to the cemetery association or the private cemetery in trust for the use and benefit of a person named in the trust conveyance.

The conveyance may contain conditions, provisions, and covenants as the parties agree upon.

Presumably, the Minnesota statutes allow the identification in the decedent’s Will of more than one potential user of a cemetery lot which is to be held in trust by the cemetery association, because such Will may be made many years prior to the death of the decedent, and allowance is made for the deaths of one or more designated users of the cemetery lot during the lifetime of the decedent.

In any event, any subsequent conveyance of the cemetery lot by the public cemetery association or private cemetery to the qualifying identified beneficiary or beneficiaries may be limited to:

  • a right of internment, rather than
  • complete ownership of the cemetery lot,

pursuant to M.S., Section 306.29, which provides in part as follows:

The cemetery association or private cemetery may, instead of deeding the fee title to this lot, grant only the exclusive right of interment in the lot.

(iv)    Non-Qualifying Devises are Void

M.S., Section 306.29 further identifies that any Death Transfers of Minnesota Cemetery Lots which do not satisfy the requirements of M.S., Section 306.29 are void, by providing in part as follows:

Every

  • conveyance or alienation or
  • attempt at conveyance or alienation

of any right, title, or interest in or to the lot contrary to the conditions and reservations of this section is void.

Title Records are to be Maintained by the Cemetery

Real estate title ownership records are usually maintained in the official records of the County in which the real property is located.

However, that is not the case with respect to records relating to the title ownership of Minnesota cemetery lots located in Minnesota public or private cemeteries.

M.S., Section 306.29 delegates such duties to the public cemetery association or private cemetery, by providing in part as follows:

Every cemetery association, or private cemetery, as the case may be, shall keep a record of all deeds, conveyances, judgments, decrees, or other documents affecting the title to lots in the cemetery.

Certified Copy Evidence of Court-approved Death Transfers – Minnesota Cemetery Lots

Whether:

  • the Will of a decedent registered owner of a Minnesota cemetery lot satisfies the requirements of M.S., Section 306.29 with respect to any Death Transfers of Minnesota Cemetery Lots, or
  • the rules of descent identified in M.S., Section 525.14 with respect to the rights in a Minnesota cemetery lot which are to be transferred upon the death of its registered owner which are not properly transferred pursuant to the terms of the decedent’s Will apply,

a certified copy of a probate court decree properly identifying the transfer of the Minnesota cemetery lot(s) to either:

  • a qualifying individual, or
  • the public cemetery association or private cemetery in trust for one or more persons,

should be filed with the public cemetery association or private cemetery – in order that the public cemetery association or private cemetery can update its ownership records.

Minnesota Probate Court Issues Relating to Cemetery Lots

(i)      Minnesota Probate Court Documents

Minnesota cemetery lots should be identified as items of real property in any probate court Inventory, Final Account, and Decree of Distribution documents.

(ii)     Valuation of a Minnesota Cemetery Lot

The Inventory and Final Account values of a Minnesota cemetery lot should be available from the records of the public cemetery association or private cemetery.

(iii)    Legal Description of a Minnesota Cemetery Lot

Each Minnesota cemetery lot which is an estate asset should be identified in the Inventory, Final Account, and Decree of Distribution by its own legal description, as identified in the records of the public cemetery association or private cemetery.

(iv)    Decree of Distribution of a Minnesota Cemetery Lot

If the Will of a decedent registered owner of a Minnesota cemetery lot satisfies the requirements of M.S., Section 306.29 with respect to the disposition of one or more Minnesota cemetery lots, the Decree of Distribution should identify that disposition, in both the:

  • Findings section of the Decree of Distribution, and in the
  • Assignment section of the Decree of Distribution.

However, if the Will of a decedent registered owner of a Minnesota cemetery lot fails to satisfy the requirements of M.S., Section 306.29 with respect to the disposition by Will of one or more Minnesota cemetery lots,

  • the Findings section of the Decree of Distribution should identify any such failure, and
  • the Assignment section of the Decree of Distribution should assign the Minnesota cemetery lot(s) to the person who would take the Minnesota cemetery lot(s) pursuant to the provisions of M.S., Section 525.14.

Death Transfers of Minnesota Cemetery Lots

Copyright 2018 – All Rights Reserved

No claim to the text of statutory provisions, administrative documents, or judicial decisions.

Gary C. Dahle

Attorney at Law

For a discussion of Minnesota probate law, see https://dahlelawprobate.com/ and http://www.dahlelawminnesota.com/ and https://dahlelaw.com/minnesota-probate/

For information on Minnesota Church Corporation law, see Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see http://dahlelawguardianships.com/

Topics of Interest:

Minnesota Probate and Cemetery Law Attorney

Gary C. Dahle – Attorney at Law

2704 County Road 10, Mounds View, MN 55112

Phone:  763-780-8390      Fax: 763-780-1735

gary@dahlelaw.com

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota cemeteries involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counsel.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota, or North Dakota, should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

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Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

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Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present:  http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificateshttp://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Recordshttps://moms.mn.gov/

Minnesota Cemetery Links

Minnesota Association of Cemeteries: https://www.mncemeteries.org/

Find a Minnesota Cemetery: https://www.mncemeteries.org/find-a-cemetery

Minnesota Private Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=307

Minnesota Public Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=306