Estate Planning FAQs

What is an Estate?

Your estate includes furniture, jewelry, cars, bank accounts, business, property, and real estate that you own. In a will, you can direct who is to receive a portion or all of your estate.

What does a will do?

A will typically accomplishes two primary things. First, it directs who will receive your "estate" after your death. Second, it provides instructions about what should happen after your death, including who should care and provide for your children or dependents.

What instructions can I provide in my will?

You can provide little instruction or very detailed instructions about things in your will. Usually, though, a will provides instructions for the care of any children and also names a "personal representative" to manage and distribute your estate after you die. The personal representative, which can also be 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.

Why should I have a will?

  • 1. Expresses your wishes regarding your belongings and possessions. A will controls not only how your estate will be divided, but to whom.
  • 2. Designates a guardian for your children. Who do you want to take care of your minor children should you no longer be able? If you do not voice your preference, someone else will decide who is to raise your children.
  • 3. Provides direction and clarity for your family members. A will also helps to minimize the burden and maintain harmony between family members by designating who should be the personal representative of your estate? That is, who is the person you want to manage all of your affairs--including paying bills, selling assets, distributing your property-- after you have passed?
  • 4. Decreases costs of administrating your estate and increases efficiency. A will simplifies the probate process. If you do not have a will, your family will need to take a different, more time consuming course, to manage your affairs.

Whether you are single, married, have children, or own even a small amount of personal assets or property you should have a will. If you have not formalized your wishes, your estate may meet with unnecessary and expensive litigation, only adding to the grief of your survivors.

What are the requirements for writing a will?

In Minnesota, you must be at least 18 years of age and of sound mind. In order to be valid, the will must be in writing and signed by you or by someone at your direction in your presence. The will must also be witnessed by at least two other people, whom must also sign the will. The document's sole purpose must be to operate as your will. An attorney can assure that the requirements to make a valid will are strictly followed.

How long is a will valid?

A will remains effective until it is changed or revoked. It is recommended, however, that you periodically review your will to assure that it provides for your family as you originally planned or to take into account new or changed circumstances. If your will does not include changes in your life that occurred after you created the will, the will may not accurately reflect how you would want those circumstances addressed at your death. You should consider reviewing and changing your will when you marry or divorce, if there is a birth or death in the family, a named guardian for your children dies or is no longer available, the value or type of your property changes significantly, or you move to another state.

In my will, my I refuse to provide for some members of my family?

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.

Where do I keep a will?

Always keep your will in a safe place - somewhere it can be easily found after your death. It is important to tell your personal representatives, family and close friends where and how to access your will. Some suggestions for safekeeping are your home safe or a safety deposit box. In Minnesota, the probate court or court administrator's office will file and store your will for you as well.

What happens when there is no will?

If you pass away without a will (intestate), your property must go through the probate process in order to have the legal title to the property transferred to your heirs. Your state's laws of descent and distribution will determine who receives your assets and property. Typically your spouse and children would be the recipients. If you are not married and have no children, the distribution would be to your next of kin family members. A state's plan often reflects the legislature's guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. This plan may or may not reflect your actual wishes.

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 died before you died or you did not have a spouse, 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.

If I have a will does my family avoid probate?

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. If all of your property is held jointly or in trust, however, probate may not be necessary after your death.

What is a power of attorney?

A power of attorney is a document in which you (the principal) give someone else (usually a relative or close friend) the authority to make certain decisions and act on your behalf. This designated person is called an agent or attorney-in-fact. Assigning a power of attorney does not mean you can no longer make your own decisions; it just means that other person can act for you as well. As long as you are able to make decisions, your designated power of attorney must follow your directions. At any time you can revoke the agent's authority if you are dissatisfied with what they are doing. A general power of attorney authorizes your agent to act on your behalf in a variety of different situations. A special power of attorney authorizes your agent to act on your behalf in only specific situations. A durable power of attorney means the document will remain in effect or take effect if you become mentally incompetent.

What is a health care directive?

In 1998, Minnesota law authorized the use of health care directives, which allows you to appoint a health care agent to make health care decisions when you become unable or unwilling to make or communicate such decisions, and to give instructions as to what choices you prefer. The health care directives law combined and replaced what was previously called a Living Will and a Durable Power of Attorney for Health Care. A health care directive can outline and describe your preferences about issues such as surgery, nursing home or specialized care, medication, religious concerns, funeral planning, organ donation and the types of life-sustaining procedures you may want or not want for yourself.

What is the difference between a will, a living will/health care directive and a living trust?

A will, a living will/health care directive, and a living trust are all important legal documents that almost every adult should have. A will dictates how your estate and property is to be distributed after your death. It may also include a naming of guardians for your children or self should you become incapacitated. A living will/health care directive details your wishes to be kept alive by artificial life support. It also gives you the ability to set limits on your hospital, medical, and funeral costs. A living trust is similar to a regular will except that it can be amended at any time and your estate goes directly to your heirs without passing first through probate court. A living trust also remains private while a will goes public at the time of your death.