What's All This Self-Proved Wills Stuff, Anyway?

There are certain legal requirements for executing a valid Will in Minnesota. Your Will must be in writing, you must sign it in the presence of witnesses, and you must have testamentary capacity at the time you sign the document.

Executing a Will in Minnesota does not require a Notary Public. However, by taking the additional step of making your Will self-proved (which does require acknowledgement by a Notary), that helps establish that your Will was properly executed, in the event it is contested in court.

To make a Will self-proved, you and two witnesses acknowledge that you signed and executed the Will voluntarily, that you are at least 18 years of age, not under undue influence, and of sound mind. This is documented in a self-proved affidavit attached to your Will. You and the two witnesses sign the affidavit while in the presence of one another, and those signatures must then be notarized.

Under Minnesota law, a properly executed self-proved Will is automatically presumed by the probate court to be an authentic Will. That does not mean the Will is completely immune to challenge. In fact, no Will is certain to be air-tight. However, a self-proved Will is more difficult for an interested person to challenge in a Will contest. Since the proponent of a Will (usually the personal representative) bears the burden of proof in court to show due execution, having the Will self-proved adds evidentiary weight to defend it if contested.

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Crafting a Will that meets your wishes is an important tool to protect your assets for your loved ones. Talking to a qualified estate planning attorney is a great place to start.

Letters Testamentary: What Is It And How Do I Get One?

Despite the name, Letters Testamentary is not really a "letter" at all. Rather, it is a document issued by a probate court that gives the authority for someone to administer the estate of a decedent.

The probate court must appoint someone to act as the personal representative (PR). Even if you were nominated as the PR in the decedent's Will, the court has final authority as to who actually serves. Probate courts give a lot of weight to the nomination of PR in a valid Will; nevertheless, you're not the PR until the court appoints you as such.

Probate courts view decedents as falling into either of two categories: A person who has died with a valid Will (testate), or one who has died without a Will (intestate). If the decedent died testate, the court issues Letters Testamentary. If the decedent died intestate, then the court would issue Letters of General Administration.

Confused? Don't be. Letters Testamentary and Letters of General Administration are basically the same thing. In both cases it is a document from the court giving the go-ahead for the appointed personal representative to administer the estate.

A few things must be done before the court will issue Letters Testamentary. Of course, the first step is to file an application or a petition with the court to begin probate. If there is a Will, you need to present the original document to the court. You will be required to provide notice of probate proceedings to all interested parties, including family members, beneficiaries, and creditors. You will also need to publish a notice of the probate in the local newspaper, usually for two consecutive weeks. After you have provided proper notice, you file affidavits with the court, and once satisfied, the court then issues Letters Testamentary or Letters of General Administration, depending on whether or not there was a valid Will.

This can be a rather convoluted process. It's always wise to seek counsel of a qualified probate attorney before jumping in to probate.

The process of obtaining Letters Testamentary can take several weeks, due to your notice process and the court's handling the paperwork. Be patient. The cost of obtaining Letters Testamentary can range from a few thousand dollars, to tens of thousands, depending on the complexity of the estate. These expenses are paid from the estate assets, but if you don't have access to estate assets right away, you will be reimbursed for out-of-pocket expenditures relating to estate administration. Note that estate administration expenses (including attorney fees) rank at the top of the priority of debts to be paid from the estate.

Note: If the aggregate value of the decedent's estate is under $75,000 with no real property, it is considered a small estate and probate is unnecessary. Obtaining Letters Testamentary becomes a moot point.

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If you have questions about this process, seek the advice of a qualified probate attorney.

Choosing A Worthy Charity And Avoiding Scams.

When considering your estate plan, you might be thinking about giving to a charity, either out of generosity, or tax concerns, or both. There are countless charities, and some are better than others. Many of them are excellent and do wonderful things. But too many of them are, at best, inefficient, and at worst, complete ripoffs. It pays to do your research before setting up a gift in your Will.

Does the charity's mission reflect your values and objectives? Is the organization transparent with their goals, or are they astroturfing with hidden agendas? Do they do a good job of  managing resources and are efficient and responsible with your money? Will the charity protect your personal information, or do they sell your data to other entities? Is the charity even legit, or is it a scam?

It's often difficult to size up a charity, but here are some warning signs to look for.

• The organization uses high-pressure tactics. Do they insist that you commit to a donation now? Do they ask for credit card information? A legitimate charity will understand that you need time to look them over and learn about them before agreeing to give. 
• The charity does not have a physical address. If they only show a P.O. box or merely have an online payment form, this should sound alarm bells with you. If you send an inquiry and they start spamming you with solicitations, this might be a sign that you should move on.
  
• The charity is inefficient with donations, or worse yet, they don't provide financials at all. All charities have operating expenses. But if a large percentage of donations pays for things like lavish salaries and professional fund-raising, much of your gift will be wasted. Sites like Charity Navigator and Charity Watch have search functions where you can look up an organization and find out where the money goes. 
• The charity is not a tax-exempt non-profit or it does not readily disclose its tax-exempt status. Look to see if the organization is registered as a 501(c)(3) entity under the Internal Revenue Service Code. Search the charity's IRS Form 990. Checking with the Minnesota AG's office can also help you find good information on charities. Without getting this kind of tax status information you could end up dealing with a sham commercial enterprise disguised as a charity.
• An organization sends you an unsolicited gift. Things like t-shirts, address labels and holiday cards are a common way some organizations promote themselves and you are under no obligation to give them anything. Even if the trinket had come from a reputable charity, don't feel obligated to return in kind.
• Similar-sounding charity names (e.g., Find the Children vs Save the Children--the latter being the well-known, legit organization). Some online sleuthing can help you zero in on the bona fide charity and steer you away from the bogus, soundalike organizations.

There are many worthy charities, and they need donations more than ever. Don't throw away your money by giving to a bogus organization.

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When putting together your estate plan, you may have questions and concerns about charitable giving. A qualified attorney can help guide you in crafting a Will that reflects your wishes.

A Checklist Of Some Estate Planning Mistakes To Avoid.

1. Not creating an estate plan. If you die without a Will, the probate court will determine the disposition of your property using the laws of intestate succession. Your assets may be distributed to people you hadn't planned to receive them.

2. Not updating your estate plan when life events occur. Changes in marital status, having new children or grandchildren, moving out of state, deaths in the family, and changes in wealth are all reasons to review your Will.

3. Not considering family dynamics. Are you treating your beneficiaries equally instead of fairly? Simply giving each child an equal share may overlook the differing financial needs of each. Also, some children may have been closer and more attentive to you during your lifetime, while others may be estranged. Therefore, it may be more fair to reward some children with larger shares. However, if you decide to give in unequal shares, it's usually a good idea to discuss this with your children to avoid hurt feelings (and litigation) later.

4. Failure to update asset ownership. Your Will should be updated to reflect major changes in your estate assets. It is also a good idea to consult a qualified tax advisor to investigate the tax issues involved.

5. Failure to fund your estate to cover taxes and debts. Before your beneficiaries can receive any assets from your estate, all valid debts must be paid. Will there be sufficient assets to pay estate debts? After those are paid, will there be enough remaining to leave something to your children?

6. Neglecting your digital property. Social media, email accounts, cloud-based storage, and online banking are assets with financial or sentimental value. Unfortunately, many estate plans fail to provide guidance for your fiduciaries to access them. Which digital assets do you want preserved and which do you want deleted? You can grant permission for your fiduciaries to access digital assets in your power of attorney and your Will.

7. Outdated beneficiary designations. Do the designations in your current Will still reflect your true intent? Do you have new children or grandchildren, or perhaps new step-family? Have any of your descendants passed away? Are there charitable gifts provided in your Will, and do you still wish to give? While you're at it, have you reviewed the named beneficiaries in your payable-on-death accounts, such as pensions and life insurance policies?

8. Outdated fiduciary designations. Have you nominated successor/alternate personal representatives in your Will? If there is only one, what if that person is not available or willing to serve when the time comes? If your Will does not nominate a successor, the court will choose a replacement. It's wise to name two or three successors, just to be safe. The same with conservators and UTMA custodians--it's a good idea to nominate successors for those as well.

9. Failure to plan for incapacity. What will happen to you and your assets if you become incapacitated? Who will take care of your medical and personal needs? Who will manage your financial affairs? Having a durable power of attorney and advance health care directive should be a part of your estate planning. Not having those means a court may be required to appoint a guardian and conservator to act on your behalf.

10. Not working with a qualified estate planning attorney. Saving a little money with do-it-yourself or online Wills can lead to major problems later. These forms often overlook specifics of state law, and it's easy for a person to improperly prepare the forms. The completed document might even be invalidated by the probate court if it contains errors, wasn't executed properly or otherwise doesn't comply with Minnesota law.

 

Explain Your Estate Plan To Loved Ones With A Letter Of Instruction.

Having a well-crafted estate plan is a critical part of protecting your assets for your descendants. However, there is a lot of information your loved ones may need to know that is not found in your Will and other estate planning documents. A good way to fill in the blanks is to write a letter of instruction to your family members. This is a helpful means for you to be candid with your family, to convey your wishes and let them know what to expect after you have passed.

The letter of instruction is a piece that is written by you, in your words, and not written by your attorney. It is legally non-binding, but it is intended to be helpful for your family. The general idea of the letter is to give some guidance and comfort to your family before you die to help them later when they will be preoccupied dealing with grief and the burdens of wrapping up your affairs.

There are no rules about what the letter needs to contain and no particular format or style requirements. It can be as brief or as lengthy as you'd like. You can write one general letter directed to all your children, or you can write separate letters, tailored to each child. What to include in the letter is entirely up to you. Topics may include:

• Your thoughts and beliefs regarding your end of life medical care.
• A list of people to contact when you die, including family and friends, the personal representative(s) of your estate plan, and a list of beneficiaries.
• Discussing charitable contributions you intend to make through your estate plan.
• Organizations you belong to that should be notified, such as professional organizations, boards, alumni groups, service organizations, clubs, etc.
• A contact list of professionals, such as attorneys, tax preparers, investment advisors, insurance agents.
• The location of important documents, such as your Will, insurance policies, deeds, birth certificate, financial statements, automobile titles. Be sure to include the location of safe deposit boxes and who has access to them.
  
• A list of major assets, such as bank accounts, investments, insurance policies, real estate, pensions, etc.
• Contact information for credit card accounts, mortgage companies, and other creditors.
• Logins and passwords for online accounts.
• Funeral, memorial and burial/cremation instructions.
• A list of sentimental items to give to family members.
• A personal message for your family. This may be a good opportunity to discuss your estate plan, your wishes, and perhaps tell your family members why you made your decisions. This can help your family understand your intent and (hopefully) help prevent any disagreements they may have regarding their future inheritances.
  

The above list is not exhaustive and you can include any number of topics in your letter.

Once you have written your letter, be sure to store it in an accessible location and tell your family about it. You may wish to revisit the letter from time to time and make changes if you desire. It would also be a good idea to have your attorney review it to ensure that nothing in the letter contradicts the language contained in your estate planning documents.