Estate Planning FAQs
Q. Is the will I did online just as good as one done by a lawyer?
A will is an important legal document. Keep in mind that online forms are not specific to Minnesota and may not comply with our state’s laws. Your estate plan should be molded to your specific needs, with the necessary wording and execution to ensure your wishes will be complied with after you pass away.
Q. Will my assets be probated if I have a will?
A will provides instructions to the probate court. The value and type of assets you own at death determines whether you have an estate that requires probate. The way your assets are titled determines whether you have an estate to be probated. Having a will may reduce the cost of probate and provide more direction for your family and friends.
Q. Can I just add my child’s name to my property to avoid probate?
While you can avoid probate for this property interest, it is important to realize that the rights you have created in that property for your child are equal to yours. After adding the child’s name, you cannot change your mind about sharing title unless the child agrees, even through your own will or trust. When you pass away, that child becomes the sole owner of the property and does not have any legal responsibilities to share it with anyone else, despite your wishes to the contrary. Other considerations are that your ownership rights could be compromised if your child is sued or has creditor problems.
Q. Who gets my property if I do not have a will or if I do not have a spouse or children?
Contrary to what some people have been told, your property generally will not go to the state. The law outlines who gets your probate property should you die without a will. A probate will be started and your “heirs” (the people that will inherit) are determined. Often times, however, this is not what people would have wanted. That is why it is important to do your own will to direct to whom you want your assets to go. Also, a will can include a trust to hold and manage your assets for the benefit of your minor or young adult children.
Q. Can I disinherit my children or spouse?
You may disinherit a child. Your estate planning document must specifically state your intention to do so. Also, if the child is a minor, the law provides an allowance to support the child until he or she is an adult.
You can only disinherit your spouse if you and your spouse have waived the right to inherit from each other. This can be done with documents like a antenuptial agreement or a postnuptial agreement. Without this waiver of rights, a surviving spouse has certain rights to the deceased spouse’s property and the surviving spouse can “elect against” the will and collect his or her legal share of the deceased spouse’s estate.
Q. Do I need a financial power of attorney?
Yes. This is a relatively simple document that gives someone else authority to make your financial decisions for you if you become incapacitated for any reason. The person you name, called the attorney-in-fact, acts in your best interests to perform transactions for you such as paying bills, selling your real estate if it is necessary, etc. when you are no longer able to do them on your own. If you become incapacitated and do not have a power of attorney, your loved ones may need to go through a court process to obtain a conservatorship over you.
Q. Since I’ve already done a will, am I finished with my estate planning?
After completing your will, you will need to be sure your beneficiary designations on your life insurance policies, annuities, retirement accounts, and other bank accounts reflect your wishes. These designations trump what you have in your will, so you will likely want them to be the same, depending on your overall estate plan.
Too often, children are left not knowing what their deceased parents owned, or much less what they had for an estate plan. It is important to keep your records organized, in a safe place, where they can be easily found by your survivors. While it is not necessary to discuss the details of your plan, we encourage you to have a discussion with your loved ones about where they can locate the necessary information when the time comes. This is never an easy discussion, however, it may relieve added stress during a difficult time.
You should review your estate plan regularly, in particular, if any major events have occurred (a death of a spouse, child or nominated personal representative, a potential sale of a business, etc.). You may find that you need a change to your will (a codicil) or your trust (an amendment) to account for the change in circumstances.