Question: "What is an estate?"
Answer: Your estate includes furniture, jewelry, cars, bank accounts, business, property, and real estate that you own. In a Will or Revocable Trust, you can direct who is to receive a portion or all of your estate.
Question: "What if I die without a Will?"
Answer: If you die without a Will, Minnesota law determines who receives all or a portion of your estate. Though there are exceptions in the law, the balance of your estate would usually go to your spouse, if your spouse is still alive. If your spouse predeceased you or you were not married, the balance of your estate would go to any children. Generally, 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, though it depends upon who among your legal heirs are still alive at the time of your death. If you have no surviving family and die without a Will, the balance from your estate would usually be paid to the State of Minnesota.
Question: "In my Will, can I refuse to provide for some members of my family?"
Answer: Specifically excluding a person from inheriting part of your estate is called "disinheriting." A married person cannot disinherit a spouse without the spouse’s consent. You may specifically exclude or "disinherit" a child as long as you are clear about it in the Will so that the disinheritance does not appear to be a mistake.
Question: "What is required to create a Will, and can I create a “joint” Will with my spouse?"
Answer: While each state may have different requirements for creating a valid Will, a valid Will in Minnesota must be a written document signed by an individual who has attained at least 18 years of age and is of sound mind. In addition, the Will must be signed before two witnesses and a notary public. Each person must create his or her own Will, as a “joint” Will is not valid in the state of Minnesota. An experienced estate planning attorney can assure that the requirements to make a valid Will are strictly followed.
Question: "Can my personal representative handle my affairs if I become too sick to do so myself?"
Answer: No, a Will takes effect only after your death. If you want someone to handle your affairs in the event that you become disabled or incompetent, you should consult with us about a number of options, including a Health Care Directive.
Question: "What instructions can I provide in my Will?"
Answer: You can provide little instruction or very detailed instructions in your Will. Usually, a Will provides instructions for the care of any children you may have and also names a "personal representative" (executor) to manage and distribute your estate after you die. The personal representative, which can also be a legal entity, gathers your property, pays any debts and taxes, and distributes the balance of your estate to the people or organizations you have named in your Will.
Question: "If I have a Will, does my family avoid probate?"
Answer: Not necessarily. Probate is a court proceeding that manages and settles your estate. If there is property to be administered or taxes to be paid, the existence of a Will does not necessarily avoid probate, nor does it increase the expense of the probate process. However, if all of your property is held jointly or in trust, probate may not be necessary after your death. If you are concerned about probate, our seasoned attorneys can help you decide the best plan for your circumstances.
Question: "What about life insurance and retirement benefits?"
Answer: If you have a Will, certain property or benefits may be distributed to your spouse or others, even though it is not mentioned in the Will. Typically, life insurance, retirement benefits, joint tenancy property, and property in a Revocable Trust are distributed directly to the beneficiaries named in the policy, plan or trust. If you own certain property specifically as a "joint tenant" with others, such property will be distributed directly to the other joint tenants who are still living after your death, without regard to how you have distributed your estate in a Will.
Question: "How long is a Will or Revocable Trust valid?"
Answer: A Will or Revocable Trust remains effective until it is changed or revoked. We recommend however, that you periodically review your Will or Revocable Trust to assure that it provides for your family as originally planned and to take into account new or changed circumstances. If your Will or Revocable Trust does not include changes in your life that occurred after you created it, it may not accurately reflect how you would want those circumstances addressed at your death. You should consider reviewing and changing your Will or Revocable Trust when you marry or divorce, if there is a birth or death in the family, if a named guardian for your children dies or is no longer available, if the value or type of your property changes significantly, or if you move to another state.
Question: "We lived in Wisconsin before moving to Minnesota. Is our Wisconsin Will valid in Minnesota, or does it need to be redone?"
Answer: As long as the Will was validly executed in Wisconsin while you were domiciled there, it is valid in Minnesota. Nevertheless, it is recommended that your Will be reviewed by a Minnesota estate planning attorney to make sure it is consistent with current Minnesota state law. It is always a good idea to periodically review your Will to make sure it is consistent with your current wishes. If your circumstances have changed, it may be time to update or redo the Will.