Wills

A will establishes two primary things.  First, it directs who will receive your estate after death. Second, it provides instructions about what should happen to your property after death, as well as who should care and provide for your children or dependents.

The State of Minnesota requires that for a will to be valid the following must be strictly followed; it must be a written document signed by a person who is at least 18 years old and of “sound mind,” and two witnesses must sign a will indicating that they witnessed the person's signature or were present when the person making will acknowledge that he or she signed the will.  Minnesota does not recognize non-witnessed, or holographic, wills.

A will typically provides instructions for the care of any children, and nominates a Guardian to take care of them should their parents pass away before they are of a certain year of age. A trust may be established to manage and distribute assets to children until they reach a specified age. Otherwise, a child will come into its inheritance when it becomes an “adult” at age 18. If you wish, you can provide even more detailed instructions in the will.

A will also names a “personal representative" to manage and distribute the estate after you die. A personal representative can be either a living human being or a legal entity. Quite often it is the surviving spouse when the first of a married couple passes away. Many times a corporate trust company is nominated to be personal representative in larger estates.  The personal representative gathers your property, pays any debts and taxes, and distributes the balance of your estate to the people or organizations that you have named in you will.

If you die without a will, state law determines who will receive all or a portion of your estate.  This is called dying “intestate”. If you die with a surviving spouse and/or children the estate is divided among them. If you are not survived by a spouse or children, Minnesota law would distribute the balance of your estate to your parents, siblings or cousins. If you have no surviving family and die without a will, the balance of your estate would usually be paid to the state of Minnesota.  This is a common law doctrine called escheat.

It is important to note: having a will does not allow the deceased’s family to avoid probate. Probate is a proceeding that manages and settles your estate. If all of a decedent’s estate is held in joint tenancy or has designated beneficiaries a probate proceeding may not be necessary.  A properly drafted will may be able to simplify the probate process, and reduce the overall time and expenses involved.