frequently asked questions - wills
What is a will?
A will is a set of instructions that explains how you want your property distributed after your death. Your will must be in writing and must be signed by you and two witnesses. The witnesses must also have seen each other witness your will. Some people cannot serve as witnesses to your will. It is important to make sure that all of Minnesota’s legal formalities are carefully observed.
Back to TopWhat are the benefits of a will?
A will allows you to decide who will manage your money and other property after you die, and how it will be distributed. It lets your wishes be heard regarding the care of minor and disabled children. It often prevents disputes among your relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.
Back to TopWho should draft a will?
A will is an important legal document that can have a significant impact on your family. A lawyer can give you good advice on how the will should be prepared and executed. Having a lawyer draft your will gives you the assurance that your voice will be heard regarding how you want your children to be cared for and how you want your property to be distributed.
Back to TopDoes a will avoid probate?
No, but a having a will can reduce the cost of probate and the burden to your friends and family. Whether your property needs to go through probate is determined by how that property is titled, not whether you have a will.
Back to TopWhat happens if I do not have a will?
If you do not have a will, and if you have probate property, your property will be distributed according to instructions made by the Minnesota legislature.
Back to TopWhat is a personal representative?
If your estate needs management, a personal representative (executor) will be appointed by the court. Having a will lets you decide who that person will be. You may choose someone familiar with your property and affairs or a professional who can serve as a personal representative. If you think there may be hard feelings in your family or your estate has complications such as children from a previous marriage, you may want to name a professional. Many banks and trust companies have experienced people to handle the difficult task of being a personal representative and — since the fee paid to a personal representative is determined by the size of the estate, not by who serves as personal representative — banks and trust companies are generally paid the same fee to serve as personal representative as an individual is paid.
Back to TopWhat is a trust?
A trust is another tool used in estate planning that can be created as part of a will or as a separate document. A trust is a legal document that appoints someone (a “trustee”) to manage your property and gives detailed instructions on how the property will be managed and distributed. A trust is one way to take care of a minor child, an elderly person or someone who needs help handling money. A trust may be established during your lifetime, and you may act as your own trustee, or it may be established by your will after your death. Trusts are generally more complicated to create than a will, and you may want to consider having an estate planning lawyer assist you
Back to TopWhat are the advantages of a trust?
There are several advantages of advantages of a trust, some of which are:
- •You control, through the trust instrument, the way assets are managed and disposed of, either at death or during incapacity.
- •A trust (and its assets) does not part of the probate estate.
- •No need for a conservatorship due to incapacity.
- •The avoidance or reduction of estate taxes
- •The potential to avoid creditor claims
Can a revocable living trust substitute for a will?
A properly drafted revocable living trust can work well as a substitute for a will and sometimes may reduce the costs of handling your estate. However, even if you have a trust, most advisors would recommend you also have a will to cover the possibility that some of your assets may not be covered by the trust at the time of your death. Whether a trust is proper for your estate is a decision to be made after receiving competent legal advice.
Back to TopIs a will expensive?
No, a simple will is not expensive. However, the cost of any will depends on how much work your lawyer does for you. As a will becomes more complicated, the cost rises. Ask your lawyer for an estimate of the cost. In general, the trouble and expense of not having a will far outweigh the cost of the will.
Back to TopDo I need a will if I don’t have much money?
The amount of property you own does not determine whether you need a will. Your personal and financial circumstances determine when and how a will should be drafted. For example, it is important for new parents to have a will to provide for their children even if they own little personal or real property.
Back to TopIs a will from another state valid?
Yes. Generally, if you made a will in another state according to the laws of that state, it is valid in Minnesota also. This is also true if you created a trust in another state.
Back to TopCan a will be changed?
You can change your will at any time as long as you are of sound mind. Major life events such as marriage, divorce, death of a family member, or a new baby are good reasons to consider changing your will. You may revoke your old will by destroying it or by writing a new will. If you only want to make minor changes, you may create a “codicil,” a document that is attached to your will. The same legal formalities are required for creating a codicil as a will, and therefore it is wise to consult an attorney about the changes you would like to make.
Back to TopShould I consider having a Health Care Directive and a Financial Power of Attorney?
Yes. A will only takes effect after you die. A Health Care Directive and power of attorney are documents that may be used to manage your health care and finances while you are still living. A power of attorney may be created for any purpose, but most commonly an elderly person will nominate a close friend or family member to be their “agent” to help manage their money. Because this power can be abused, it is wise to seek the advice of a lawyer before signing a power of attorney. A Health Care Directive is a document in which a person appoints an “agent” to make medical decisions such as living arrangements and treatment options when they become incapacitated and unable to make their own decisions.
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