A Will is a powerful and important legal document, a tool that can help ensure that your assets will pass to your loved ones, according to your wishes. Keep in mind that no Will is completely immune to contest (a legal challenge to its validity). However, if it is well-drafted by a competent attorney, it should be robust and designed to reasonably protect your estate assets in the event someone decides to contest it.
A person's estate consists of personal property, real property, cash, bank assets, life insurance and other payable-on-death instruments, stocks and bonds, and retirement instruments such as a 401(K), IRA, and pensions. The probate estate comprises that part of the estate which is distributed after death by means of a Will in the process of probate--through a court.
However, some estate assets, such as jointly-owned assets, payable-on-death (P.O.D.) life insurance policies and retirement instruments, and transfer-on-death (T.O.D.) bank accounts or securities, may be passed on directly to designated beneficiaries. Real property may also be conveyed directly, by means of a Transfer-on-Death Deed. These non-probate assets would not be considered part of the probate estate (unless the estate is the named beneficiary). Also, certain "small estates" are not subject to the probate process at all, provided there is no real property in the testator's name alone, and the testator's personal property has a total value of less than $75,000.
If an individual wishes to give certain items of personal property to people after death, it is not necessary (or wise) to list them in the Will. Minnesota law allows a testator to make a separate written list of gifts of tangible personal property (which cannot include money or coin collections, or property used in trade or business). Thus, the Will can include a clause that references such a list of personal property to gift. There aren't many formalities to creating these lists, only that the testator include a description of each item and who shall receive it, then sign and date the list. As situations change, the testator can make a new list at any time, for any reason. The new list is still referenced in the Will, and the most current list will govern.
The first step in obtaining your Will is the initial screening consultation with a qualified attorney. This consultation is informal and typically takes about an hour. You will be asked many questions, about your family and other loved ones, your assets, your wishes, needs and personal values as they relate to your estate planning. This is the time when you and the attorney decide if they are a good fit for each other. The attorney may send out a pre-consultation questionnaire for you to fill out and return prior to the consultation. This will give the attorney a good head start into understanding your estate-planning needs. You will need to provide names, dates of birth, and addresses of people you wish to name as beneficiaries in your Will. You will also need to provide names and addresses of people you wish to nominate as your Personal Representative(s) to manage your estate after you pass away. In addition, if there will be any beneficiaries who are under the age of 21, you will be required to nominate a custodian to manage that beneficiary's inherited assets until the beneficiary reaches 21.
If Wills are needed for two spouses, there is generally no problem with one attorney or firm handling representation of both spouses. However, in such cases of joint representation, it is essential that both spouses be equally informed throughout the entire process, to avoid any potential conflicts of interest. The attorney has an ethical obligation to ensure that both spouses are fully and equally informed of anything relevant to the representation, and cannot act in favor of one spouse over the other. Accordingly, both spouses must agree to disclose all relevant information to each other. Of course, attorney-client privilege still applies between the two spouses and the attorney.
Your attorney may pose questions based on potential outcomes and scenarios in the future, the discussion of which may be discomforting to some. Estate planning deals with after-death events, and it's not always easy to talk about this. However, be assured that any information you provide, and any advice given to you by your attorney, is kept in the strictest confidence. The more information you can provide, the better equipped your attorney will be in preparing your Will.
Give very careful consideration to the person or persons you wish to appoint as your Personal Representative(s). They have a big responsibility--and broad powers--in managing your assets after you die. It is important that the people you choose be those you can rely on. Your Personal Representative has a fiduciary responsibility--a legal obligation as an agent--to represent the best interests of your estate. Your Personal Representative is responsible for probating your Will--that is, to petition the probate court and admit your Will to the court. Your Personal Representative will need to give notice to your heirs and beneficiaries, take inventory of estate assets, contact creditors and debtors, and pay debts and taxes. There may also be non-probate issues that your Personal Representative will need to address along the way, such as contacting banks, mortgage lenders, insurance companies, utilities, funeral home, Social Security, the VA, and others.
After you have finished the initial interview, and you have chosen to retain the services of your attorney, you may have questions or concerns later on, or perhaps some information to add or changes to make. That's OK--feel free to contact your attorney to help "fill in the blanks." Similarly, your attorney may need additional information or perhaps some clarification as your Will is being prepared, and he or she may contact you with questions. Your attorney may provide draft copies of your Will as it is in-process, so that you can review it to make sure everything is correct.
Once your attorney has prepared a Will document that meets your expectations, the next step is to execute it. Under Minnesota law, this requires that the testator sign the document, and that your act of signing be witnessed by two competent persons over 18 years of age (those two witnesses will also sign the Will). If the Will is self-proved (the testator and witnesses sign a sworn affidavit of validity which is incorporated into the Will), then the Will must also be notarized. The Notary Public must be present to witness everyone's signatures and add his or her signature and Notary seal. Thus, the testator, the two witnesses and the Notary Public must all be in the same place during the entire execution process. It is important that none of your heirs or Personal Representatives stand in as witnesses, to avoid any appearance of undue influence or possible conflict of interest. The execution typically takes just a few minutes. After this process is complete, you will have your executed and legally-binding Basic Will.
A good estate planning attorney can help you get started with a plan, tailored to your wishes and needs, that will help protect your property for your loved ones.