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Frequently Asked Questions

(The following information applies in the state of Minnesota only.)

+ What is a Will?

See General FAQ, not state specific.

+ What If I Die Without a Will

dying without a will you are “intestate”. This means that the state, not you, decides how your property is to be distributed. Minnesota’s rules for intestate succession say that your property will be distributed in the following manner:

*If your spouse survives you, your spouse receives:

– All of your property if you die without children

– All of your property if your surviving issue are issue you had with your surviving spouse

– The first 150,000 plus 1/2 of the balance of your intestate estate if all of your issue are issue you had with your surviving spouse, but your surviving spouse has issue that are not issue of yours

*If you have no surviving spouse, or all property is not given to your surviving spouse is distributed to the following persons:

– Your children in equal shares, or if you have none, to their issue, or if you have none;

– Your parents, or if you have none;

– Your brothers and sisters or their children, or if you have none;

– Your grandparents 1/2 to your father’s side and 1/2 to your mother’s side, or their children or their descendants, or if you have none;

– Aunts, uncles, children and grandchildren or deceased uncles and aunts, or if you have none;

– To the State of Minnesota

Anyone that may take part of your estate through the above means must survive you by 120 hours.

+ What are the Legal Requirements for a valid will?

Any person making a will must be at least 18 years old and of sound mind.

A will must be signed by the person making the will (testator). Another person may sign the will for the testator if the testator is unable to sign the will for his or herself. This must be done at the direction of and in the presence of the testator. The will must be signed in the presence of at least two witnesses. Anyone may serve as a witness of the signing of the will, even someone who has an interest in the will being signed.

Minnesota does recognize self-proving wills. This is a page which is attached to your will and allows your executor to file the will without the witnesses being found.

+ What is a codicil?

A codicil is an amendment or addition to a will that you have already executed. A codicil may be as simple as changing or adding a name or a number, or it can be as complex as rewriting or adding whole new sections to your existing will. A codicil to your will becomes part of your will and will be read together with your will to figure out what you want done with your assets at your death.

A codicil must be executed in the same manner as required by your state for a will. Generally this means that that you will need two witnesses and perhaps a notary to have your codicil be accepted.

+ What is Probate?

See General FAQ, not state specific.

+ What is the difference between a Specific vs. General Gift?

See General FAQ, not state specific.

+ Should I appoint a Guardian for my Minor Children?

See General FAQ, not state specific.

+ What happens to my debts?

See General FAQ, not state specific.

+ Should my Will Create a Trust?

See General FAQ, not state specific.

+ Can I Change or Completely Revoke my Will?

Yes you can make changes or revoke your will at any time. Remember, your will does not become effective until you have died. In order to revoke or change your will, there are some important rules you need to follow.

One way to make changes to a will is to make a codicil, which is an amendment to a will. Another way is to make an entirely new will, which revokes and takes precedence over any older wills. A codicil is a separate document however it must be signed and witnessed in the same fashion as a regular will. Because of these formalities, it is usually easier just to make, and execute, a new will.

+ Can I revive my old will by destroying my new one?

In Minnesota you cannot revive an old will simply by destroying the new will you have signed. It is possible to revive your old will; however this can only be done in one of three ways:

– By executing a codicil, which states your intent to revive your old will

– By executing a new writing stating you are reviving your old will. This writing must be executed in the same manner as a valid will.

– By “republishing”, or resigning your prior will by re-executing it in front of 2 witnesses

+ What happens if I marry, divorce, or have children after I sign my will?

In Minnesota, if you marry after you execute your will, your new spouse will be entitled to whatever they would have been entitled to if you were to have died without a will (See: “What if I die without a will?” above). This is true unless your will provides your new spouse with a greater share of your estate, or it appears clear that you executed your will knowing you were getting married and you intentionally omitted your new spouse.

If you divorce after you have executed your will all portions of your will that make mention of or give anything to your ex-spouse are revoked automatically.

If you have or adopt a child after you execute your will that new child will take the portion of your estate, after your surviving spouse, that they would have been entitled to if you had died without a will (See: “What if I die without a will?” above).

+ Will the Federal Estate Tax Effect My Estate?

See General FAQ, not state specific.

+ Is my out-of-state will valid if I move?

See General FAQ, not state specific.

+ Can I make a handwritten will?

A handwritten will, otherwise known as a “holographic will” is not valid in the State of Minnesota, and will not be recognized by the State.

+ Do I have to file my will with a court or in public records?

In Minnesota you do not need to file your will with anyone after you have signed it.

+ Can I disinherit someone?

Depending on who it is you wish to disinherit, the answer will vary. In Minnesota, as in other states, there is absolutely no requirement that you have to leave anything to your children. You may disinherit any or all of your children as you desire.

In Minnesota, unless you have a valid post or prenuptial agreement, your spouse will have a right to a portion of your estate even if you have intentionally excluded them from your will. In Minnesota, your spouse will be entitled to “elect” against your estate and collect an elective share of your estate based on how long you have been married to that person. Your surviving spouse will be allowed an elective share of 3% of your estate if you have been married for less than 2 years. The percentage your surviving spouse will be entitled to gradually increase from 3% based on the length of your marriage. The greatest elective share your surviving spouse would be entitled to is 50% of your intestate estate if you were married 15 years or longer.

You surviving spouse will be entitled to a minimum amount of $50,000.00 from your estate for supplemental purposes and will be provided regardless of the percentage of elective share provided to your surviving spouse.

+ What should I do with my will after I sign it?

After you sign your will, you should keep it in a safe place that is easily accessible. Our clients will often store their original documents in our fireproof files where they cannot be easily destroyed or stolen. Be sure that the person you have appointed as your personal representative knows where you have placed your will. If you store your documents in our fireproof files, your personal representative need only prove that you have died for the documents to be released to them.

Many people keep their wills and other important documents in their safe deposit boxes. Though these documents may be safe from fire and theft in a safe deposit box, your personal representative may have a difficult time accessing these documents when they are needed. Because of the delays and complications that can arise with the use of safe deposit boxes for this purpose, it is not recommended that these be used for the safekeeping of documents such as these.

+ Where can I get my will notarized?

Your bank is an excellent place to locate not only a notary, but also witnesses for your documents.

+ Do I need a Lawyer to Make a Will?

As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.

+ Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?

No. Jointly Held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.

+ Can I Use My Will to Care for a Special Needs Person so They Still Qualify for Their Government Programs?

Yes, if done properly. This is a rather complex area of the law and the terms in your Will must be exact. But, if done properly a Special Needs Trust can be created to care for a Special Needs Person while keeping the Person on their existing government programs.

+ Can I Put My Funeral Arrangements in my Will?

Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.

+ How Often Should I Review My Will?

Will reviews are situational, but as a general rule you should review Will terms annually. At our firm we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.

+ Can a Will help Reduce Death Taxes?

The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law and you should work closely with your Estate Planning Lawyer.
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