A will is among the most fundamental of estate planning documents, and it allows you to transfer your property after your death while retaining complete control of your property while you are living. Having a will helps to ensure that your wishes regarding your property will be honored after you die.
What Happens if I Do Not Have a Will?
You are not required to have a will. If you do not have a will, your “probate property” will be transferred according to Minnesota’s inheritance laws. Probate property includes real estate and personal property owned in your name alone, including bank accounts, stocks, bonds, vehicles, household goods and personal effects, collectibles and the like. Minnesota’s inheritance laws generally provide that your property will be given to your closest relatives, such as your spouse and children.
Other property, such as real estate and bank accounts that are owned in “joint tenancy with rights of survivorship” or assets with payable-on-death (POD), transfer-on-death (TOD) or beneficiary designations, are considered “non-probate property.” Those assets will be transferred according to the laws of joint ownership and the POD, TOD or beneficiary designations that you have set up with your financial institutions.
What Can I Include in my Will?
First, there are some limitations and common misunderstandings regarding wills. It is important to note that a will does not avoid probate. Rather, your will serves as a guide to the probate court and your heirs as to how your probate property should be transferred. Also, as may be apparent from the preceding sentence, your will can only transfer probate property. Your will does not affect how your non-probate property is transferred. It is important to coordinate your POD, TOD and beneficiary designations with the instructions in your will.
Despite these limitations, there are many advantages to having a will. The following is a non-exclusive list of provisions you may include in your will:
- Naming beneficiaries that would not otherwise inherit from you under Minnesota’s inheritance laws (such as a charity, friend or significant other);
- Leaving specific gifts of money or personal property to specified individuals;
- Leaving someone out who would otherwise inherit from you under Minnesota’s inheritance laws (however, your spouse may claim a portion of your estate even if left out of your will);
- Naming a personal representative (commonly known as “executor”) and alternate personal representatives to settle your estate after you die;
- Naming a guardian and alternate guardians for minor children;
- Leaving property in trust for a beneficiary who is too young or does not have the maturity to manage money;
- If married, leaving property in trust to shelter a portion of your estate from estate taxes; and
- Naming a trustee and alternate trustees for any trusts created by your will.
How Do I Create a Will?
When it comes to preparing your will it may be helpful to contact an experienced estate planning attorney rather than using forms or resources found online. Although such resources may be cheaper than hiring an attorney, they are often inadequate to deal with your particular goals and may not be tailored specifically to Minnesota law. Too often the result is additional expense and headache for your loved ones.
Before meeting with your attorney, you may also find it helpful to begin by outlining your objectives with regard to your estate, preparing a list of assets and debts, preparing a list of family members and other potential beneficiaries, and preparing a list of questions for your attorney. Such information will help to guide the discussion with your attorney and enhance your involvement in the planning process.
If you have any questions about this article or estate planning generally, please feel free to contact the author of this article, Randall W. Sayers at 651-332-8725; rsayers@hansendordell.com.