Probate/Estate Planning

Q:        Who needs an estate plan?

A: Everyone needs an estate plan.

Q:        Why do I need a Will?

A: If you are younger or do not have a lot of assets, you may wonder why having a Will is necessary. But, consider these questions: Who will take care of your minor children if you pass away unexpectedly? Do you have a family heirloom that you want to go to a certain beneficiary? Who should inherit your house? Who should take care of your pet in the event of your death? If you are not married, how can you ensure a significant other receives an inheritance? All these decisions seem commonplace, but they are important to consider. Furthermore, if you want to have a say in them, rather than placing the burden on your family or having a judge decide, it is necessary to have a Will in place.

Q: What if I die without a Will?

A: Dying without a Will you are “intestate.” This means that the state, not you decides how your assets are to be distributed. Minnesota’s rules of intestate succession dictate that your property be distributed in the following manner:

If you have a surviving spouse, then your spouse receives:

  • All of your property if you die without children
  • All of your property if your surviving children are children of your surviving spouse
  • The first $150,000 plus ½ of the balance if all of your children are not the children of your surviving spouse and your surviving spouse does not have children that are not yours.

If you have no surviving spouse, then your assets are distributed as follows:

  • Your children in equal shares, of if you have none, to their children, 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 or their children or their descendants, or if you have none;
  • Aunts, uncles, children and grandchildren, or if you have none;

Q: How often should I review the terms of my Will?

A: The terms of your Will should be reviewed annually. Additionally, you should always review your Will upon the of any of the following: birth or adoption of a child or grandchild, marriage, divorce, death or disability of a beneficiary under your Will, death or disability of the personal representative under your Will.

Q:        What is a Health Care Directive?

A: A Health Care Directive is a legal document that gives a person the authority to make medical decisions for you, in the event that your attending physician determines that you are unable. The legal term provided for in Minnesota Statutes for this was “living will” up to 1998. In 1998 Minnesota Statutes were amended so that now the document is called a “Health Care Directive.”

Q:        What does a Health Care Directive do?

A:        First, it appoints an individual or individuals to make decisions concerning your health care in the event that you are unable to make those decisions yourself. Secondly, it may state your wishes and provide instructions as to how you want your care to be handled in the event that you are no longer able to speak for yourself. Additional provisions of the form allow you to state your preference as to whether to donate your organs and allow you to state whether you would prefer to be buried or cremated.

Q:        Is just drafting a Health Care Directive enough?

A: No. You should talk with the person that you have named in the Health Care Directive to act on your behalf in depth about your wishes. More specifically situations regarding withdrawal of a feeding tube (giving food and water by artificial means), withdrawal of life support, administering pain treatments that may shorten life, or other specifics that seem appropriate. Just telling your agent to “unplug you” is not appropriate as it may mean different things to different people.

Q:        What is a Power of Attorney?

A: A Power of Attorney grants another person full legal authority to act on their behalf should they become unable to handle their personal and financial affairs. Without it, the Court may have to become involved through costly legal proceedings in order to appoint a person to handle all legal affairs.

Q:        How is a Power of Attorney different than a Health Care Directive?

A: A Power of Attorney gives a person the authority to make financial and other decisions for you, in the event you are unable. A Health Care Directive gives a person the authority to make medical decisions for you, in the event you are unable.

Q:        How is a Power of Attorney different than a Will?

A: A Power of Attorney gives a person the authority to make financial and other personal business decisions for you pre-death. A Power of Attorney becomes inoperative once you die. After you die, your will becomes the primary document which expresses your wishes and your Personal Representative will take care of the handling of your estate, not your Power of Attorney.

Q:        What happens if I am not able to make decisions for myself and I do not have a Health Care Directive or a Power of Attorney?

A: If you become incapacitated and you do not have a Health Care Directive or a Power of Attorney, someone, often a family member, will need to Petition the Court to appointed as your Guardian and Conservator.  For more information on Guardianships and Conservatorships (link to FAQ on Guardianships and Conservatorships).