Probate and Planning
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.
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 spouse or 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 distant relatives if there are no closer ones. Click here to view a “Table of Minnesota Heirship."
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.
A will is necessary if you want to leave property to a friend or a charity, to give certain items to certain people, or to leave someone out who would otherwise inherit from you. You may also wish to appoint a specific person to handle your estate. Thus, often 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, by another person at your direction and in your presence, or by your 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
- You must intend for 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, within the presence of at least two witnesses, that you are over 18 years old, 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, should it be contested in court.
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 trustee for any trusts created;
- Name of a personal representative to manage the estate;
- Name of a guardian for minor children;
- Name of an alternative guardian, in the event your first choice is unable or unwilling to act;
- Your signature; and
- 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, if you want to leave your spouse out of your will, it must have language that specifically and expressly excludes your spouse. Otherwise, your spouse may claim up to one half of your estate even if the will does not mention your spouse. The amount of money your spouse would get depends on how long you and your spouse were married. Your spouse has an option of whether or not to take this amount.
You may also disinherit a child in your will. Like a spouse, if you want to disinherit your child, its best to state so specifically and expressly in your will. If a child appears to have been omitted from a will by error or because the child was born after the parent’s death, the child may still be entitled to a portion of the deceased parent’s estate.
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:
- Filing your will, an inventory of your assets, and other documents with the court;
- Paying valid creditors;
- Paying taxes;
- Notifying Social Security and other agencies and companies of the death;
- Canceling credit cards, magazine subscriptions, and similar consumer items; and
- 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 you should ask yourself include the following:
- 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. When it comes to actually writing your will, you may find it helpful to contact an attorney. In the Referral Guide section, phone numbers are available for various attorney referral and legal aid services.
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; or
- Tax laws change.
Wills can be changed either by writing and executing 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 or writing in new provisions. 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 personal property distribution list. 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, and clarify whether you wish to revoke any prior statements. If an item is disposed of to different persons in different writings, the most recent 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 periodically review your will.
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 and a close friend or relative know where to find it and can access it, particularly if you are considering a safe deposit box.
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.