What is a will?

A will is a legal document that allows you to transfer your property at your death and is an important instrument in estate planning.

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.

Why should I see a lawyer about a will? Can’t I just write it myself?

There are many software programs and books that are meant to assist you in writing a will. However, a will is a specific document with a technical layout. Every will should be a personal reflection of the willmaker’s values, traditions, and interests, which can only be brought out in a discussion with a lawyer. Some Web sites advertise that writing a will only takes 15 minutes and requires little more than basic information about your assets and family. At the John E. Trojack Law Office, P.A. we believe that writing a will is one of the most important steps in a person's life that should require more than 15 minutes of time. We believe that you, your heirs, assets, and legacy deserve careful attention. 

 Another reason to draft a will with the assistance of an attorney is certainty. Working with an attorney allows you to construct your estate plan with a legal expert who can make sure your will conforms to the requirements of Minnesota law. We have had clients come to us with wills created on the Internet or with the assistance of a book. Sadly, most of the time these wills do not conform to the requirements of Minnesota Law and are invalid or require additional court time to correct and probate.

In addition, will writing software and guides do not allow the personalization necessary for a well-crafted will. We beleive that you deserve more than a cookie-cutter will or one-size-fits all estate plan that the self-help books and Web sites offer. Everyone is a unique individual with different values and interests that these will writing programs do not take into account. For example, young couples with children should have a guardianship provision in the will so that their children are cared for in the event of the parents' death. These needs can only be satisfied with the knowledge and assistance of an attorney.  

Meeting with a lawyer encourages thoughtful reflection on ones estate planning goals. A good estate planning lawyer will also be able to give advice on tax issues that will writing programs and guides do not. A lawyer is crucial to creating a will that completely protects you and your family.

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 in the following order:  Spouse, children, parents, siblings, and distant 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: Children, parents, brothers and sisters, or more distant 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 on such property as real estate or bank accounts.

A will is necessary if you want to leave property to certain people or charities, to designate the distribution of certain items, to control the size of the shares of inheritance, or to leave out someone who would otherwise inherit from you.  A will is also necessary if you want to appoint a specific person to handle your estate.  Thus, it is best to write a will so your intentions can be met.   

What rules apply to wills?

In Minnesota, the following rules apply to wills:

·        You must be at least 18 years old and of sound mind to make a will.

·        The will must be in writing.

·        The will must be signed by you, or by another person at your direction and in your
       presence.

·        The will must be witnessed by at least two people, both of whom must also sign 
      the will, and you must intend the document to operate as a will. 

What is a self-proved will?

A will is self-proved when you and witnesses acknowledge in affidavits that you signed and executed the will voluntarily, in the presence of at least two witnesses, that you are over 18 years of age, not under undue influence, and of sound mind. A will may be made self-proved at the time it is executed or at any time thereafter. You may want to consider this procedure, as it helps establish that your will was properly executed.

What is in a will?

Generally, the following basic elements are included in a will:

·        Your name and place of residence.

·        A description of any assets you wish to give to a specific person.

·        Names of spouse, children, and other beneficiaries such as charities or friends.

·        Alternative beneficiaries, in the event a beneficiary dies before you do.

·        Establishment of trusts, if desired.

·        Cancellation of debts owed to you, if desired.

·        Name of a personal representative and/or conservator to manage the estate.

·        Name of a guardian for minor children.

·        Name of an alternative guardian and/or conservator, in the event your first choice is
      unable or unwilling to act.          

·        Your signature.

·        Witnesses’ signatures.

Your will should clearly state who will get your property upon your death. You should also indicate in an itemized and organized manner how much each person will receive. You should be sure to name a guardian for your minor children and name a personal representative for your 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. If there is no will, a General Administrator is appointed by a court.  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 a great deal and is of legal age.

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.
Responsibilities usually undertaken by a personal representative include:

·        Filing your will, an inventory of your assets, and other documents with the court.

·        Paying creditors.

·        Paying taxes.

·        Notifying Social Security and other agencies and companies of the death.

·        Canceling credit cards, magazine subscriptions, and similar consumer items.

·        Distributing assets according to your will.

What is a guardian?

In most cases, a surviving parent assumes the role of sole guardian of your minor children. However, if neither spouse 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; if so, a custody battle could ensue. If you do not name a guardian to care 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 to consider are:

·        Is it important to pass my property to my heirs in the most tax-efficient manner?

·        Should I establish a trust to provide for my spouse or other beneficiaries?

·        How much money will my grandchild need for college?

·        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.

How do I change or update a will?

You may want to update or change your will if:

·        Your marital status changes.

·        A child or grandchild is born.

·        There is a death in the family.

·        You move to a new state.

·        The value and kind of property you own changes substantially.

·        Your personal representative moves away or dies.

·        Tax laws change. (You generally need to worry about tax laws only if your estate
     exceeds $1,000,000). 

Wills can be changed either by writing and signing a new one or by adding a “codicil,” which is an amendment to a will. The codicil must be written, signed, and witnessed the same way as the will, and should be kept with the original will.

Do not try to change your will by simply crossing out language; doing so requires a formal court hearing for the purpose of determining your intent.  Crossing out language raises the question of whether you intended to revoke your whole will or just a part of it; writing new provisions will be ineffective unless the provisions are signed by you and two witnesses.  

The only part of your will that can be changed without being rewritten and executed is a separate distribution list of tangible personal property (a hard asset like a table, NOT bills, notes, or stocks). If your will specifically states that you are distributing personal property by a separate document, you may simply write out a statement describing how you want to distribute your personal property. The statement can be written after the will is signed, and it can be changed without revising the will itself. If you use such a statement, always be sure to date and sign it. The last statement controls the disposition of the property, and all statements may be ineffective if their order cannot be determined.

A will is effective until you change, revoke, or cancel it, so it is a good idea to review your will periodically.

Where do I keep a will?

Your will should be kept in a safe place. The original will should be placed where it can easily be found after your death. Make sure your personal representative, a close friend, or relative knows where to find it and can access it, particularly if you are considering placing it in a safe deposit box.  Retrieving a will from a safe deposite box after death is a cumbersome process and is usually a hardship on the heirs.  

In Minnesota, the probate court or court administrator’s office will accept wills for safekeeping at no charge or for a nominal fee. You have the right to get your will back at any time. If an attorney prepares your will, he or she may be willing to hold it for safekeeping. If you do this, be sure to tell your family that the attorney has it.