What Is A Will?
A will is a legal document that allows you to transfer your property at your death. A will is a simple way to ensure that your money, property and personal belongings will be distributed as you wish after your death. A will also allows you to have full use of your property while you are alive. It identifies guardians of your minor children and can even designate how their inherited assets will be managed.
Does Everyone Need A Will?
The law does not require that you have a will. However, a will is a useful tool that provides you with the ability to control how your estate will be divided. If you die without a will, Minnesota's inheritance laws will control how your estate will be divided. Your property will go to your closest relatives. If you have a spouse and children, the property will go to them by a set formula. If not, the property will descend in the following order: grandchildren, parents, brothers and sisters, or more distance relatives if there are no closer ones. You may not need a will if you have made provisions so that your assets will pass without one, for example, by establishing trusts, life insurance policies with named beneficiaries, or joint property interests such as real estate or bank accounts.
What Rules Apply To Wills?
In Minnesota you must be 18 years old and of sound mind to make a will. The will must be in writing. It must be signed by you, or by another person at your direction and in your presence (including the testator’s conservator pursuant to a court order). The will must be witnessed by at least two people, both of whom must also sign the will. And last, you must intend for the document to operate as a will.
Can I Leave My Spouse Or My Children Out Of My will?
In Minnesota, your spouse may claim up to one half of the estate, even if he or she is left out of the will. The amount of money your spouse would get depends on how long your spouse and you were married. Your spouse has an option of whether or not to take this amount. Unlike a spouse, you may disinherit a child in your will.
What Is A Personal Representative?
A personal representative (also known as an executor or administrator) is the person who oversees payment of your debts and distribution of your assets according to your will. A personal representative is considered a fiduciary. This means that he or she must observe a high standard of care when dealing with the estate. You should identify a personal representative by name in your will. Most people choose their spouse, an adult child, a relative, a friend, a trust company or an attorney to fulfill this duty, but anyone can be named personal representative in a will. Since your personal representative will handle your assets, you should always pick someone you trust.
You may also appoint more than one personal representative. When there is more than one personal representative, all representatives must agree on any decision regarding the estate unless the will provides otherwise.
If no personal representative is named in a will, a judge will appoint one for you to oversee the distribution of your assets. Responsibilities usually undertaken by a personal representative include: 1) filing your will, an inventory of your assets, and other documents with the court; 2) paying valid creditors; 3) paying taxes; 4) notifying Social Security and other agencies and companies of the death; 5) canceling credit cards, magazine subscriptions, and similar consumer items; and 6) distributing assets according to your will.
What Is A Guardian?
A guardian is also nominated through a will. In most cases, a surviving parent assumes the role of sole guardian of your minor children. However, if neither parent survives, or if neither is willing and able to act, it is very important to name a guardian in your will. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the potential guardian about what you are asking before naming that person in your will. You can name a couple as co-guardians, but that may not be advisable. It is always possible the guardians may choose to separate at some later date; is of, a custody battle could ensue. If you do not name a guardian for your children, a judge will appoint one.
How Do I Prepare A Will?
You should outline your objectives, inventory your assets, estimate your outstanding debts and prepare a list of family members and other beneficiaries. You should then use this information to consider how you want to distribute your assets. Some questions include the following:
1) is it important to pass my property to my heirs in the most tax-efficient manner?
2) Should I establish a trust to provide for my spouse or other beneficiaries?
3) How much money will my grandchildren need for college?
4) Do I need to provide for a child who has a disability?
Assets that you do not specifically address in your will may fall into a "catch-all" clause in your will. This catch all provision is often called a "residuary clause" since it generally states, "I give the residue of my estate to..." Without this clause, the items you do not specifically mention will be distributed in accordance with state law.
This information has been excerpted in part from the publication entitled "Probate and Planning" produced by the Minnesota Attorney General's Office.
