Things That Can Cause Problems With Your Will.

Your Will is a powerful instrument. It represents your wishes for what happens to your property after you die. If your Will is well-drafted, it can help ensure that your assets go to your loved ones in the manner in which you intended, and will be best positioned to stand up against challenges (contests).

On the other hand, if your Will is not carefully written, if it includes problematic language, it could be called into question or even invalidated by the probate court. The elements at issue could also become a point of contention with some of your family members after you are gone.

Here are a few of the more dubious items I have spotted when clients bring in their previous Wills for review:

• Naming a personal representative who lacks financial knowledge or organizational skills.
• Failing to name successor guardians or conservators for children. The same for personal representatives--you should name successors.
• Leaving a bequest directly to a pet. You must leave the bequest to an appointed caretaker on behalf of the pet, or set up a pet trust.
• Putting onerous conditions on beneficiaries that are difficult or impossible to enforce. Don't make your loved ones jump through hoops.
• Stating end-of-life decisions or health care instructions in the Will. By the time your Will is even looked at, let alone probated, it would be too late to address your health care issues. Health care instructions are best addressed in an advance health care directive.
• Including funeral and burial instructions in the Will. Your Will most likely will not be read by family until much later. Funeral and burial instructions can be stated in your health care directive, or in a letter of instruction.
• Conflicting beneficiary designations between those in your Will and those stated in other instruments.
• Leaving unclear or ambiguous instructions dealing with blended families.
• Failing to provide for a personal property written list in your Will, to give tangible property items that are meaningful to family members.

Many of the above elements are things that do-it-yourselfers unwittingly include. This makes it all the more important to seek the counsel of a qualified estate planning attorney to help you craft a Will.

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The Small Estate Affidavit.

Not all estates must be probated. One way that probate may be avoided involves what are known as "small estates." In these cases, Minnesota law allows an heir or personal representative to collect property such as bank accounts, vehicles, investment accounts, safe deposit boxes, and other estate assets by use of an Affidavit for Collection of Personal Property.

The person attempting to collect property must complete the affidavit certifying that he/she is legally entitled to the property, and must also provide a certified copy of the death certificate. The person brings the affidavit and death certificate to the person or business who holds the property or owes money to the decedent. If the decedent left a Will, the personal representative can sign the certification stating the beneficiary is entitled to the property.

There are some requirements for using the affidavit:

• The total probate estate value must be under $75,000 (total value, minus debt).
• There is no real property in the probate estate, regardless of its value. If the decedent left real property and the total value of the estate is still under $75,000, the estate nevertheless must be probated.
• The property is listed only in the name of the decedent (i.e., no joint tenant or named beneficiary).
• Thirty days have passed since the death of the decedent.
• No jurisdiction has granted or is considering any application or petition for the appointment of a personal representative.
• You have legal standing to submit the affidavit, either by being named as a beneficiary in the decedent's Will; or if the decedent left no Will, you are entitled to the property under the law as a surviving descendant or are otherwise entitled to the property under the Probate Code.

Medical Assistance claims can be made against an estate by using the affidavit, but not when a request for appointment of a personal representative is pending.

While it's often an advantage to avoid probate, there are some disadvantages of small estate administration:

• An estate worth up to $75,000 is still significant. Without the probate court to oversee the administration, there is room for improper distribution, either by mistake or misappropriation. Drafting an affidavit is not always a good DIY project.
• A personal representative could unwittingly distribute property before creditors are paid off. With probate the court provides checks and balances and requires the PR to satisfy valid debts before any property can be distributed to beneficiaries.
• An unscrupulous or careless family member may take estate property without the knowledge or approval of the personal representative.
  
• It's not uncommon for financial planners or other non-attorneys to try to help by drafting affidavits on behalf of clients. A poorly-drafted affidavit can create more harm than good, not to mention that it may constitute the unauthorized practice of law. The drafting of an affidavit is best left in the hands of a licensed Minnesota attorney.

What To Expect When Executing Your Will.

You have been diligently working with your attorney to put together an estate plan that meets your expectations. You have reviewed the drafts your attorney has sent you and you are now ready to finish the process. The next step is to execute--sign--your Will. How does this work and what are the steps you will be taking?

Every estate planning firm does things a little differently, but here's what I do.

• COVID-19 precautions: the wearing of masks by all persons present and social distancing. At this time I am taking precautions to minimize contact. That means no in-office meetings, but drive-up signing instead. This occasion is the only time we would meet in person. The execution takes place while you remain in your vehicle.
  
• Only the necessary persons will gather. I and the two witnesses will stand outside your vehicle and perform our duties as efficiently as possible. I will also serve as the Notary Public. The entire execution process takes about 15-20 minutes. The two witnesses will be present during the entire process.
  
• Verification of your name and identity. You will state your full name and confirm that this Will is to be your most recent Will, revoking any previous Wills you may have made.
  
• Testamentary intent and capacity. You will confirm that you are currently of sound mind and that this Will represents your intent to convey your property to the beneficiaries named in the Will.
• Review the Will. You look over and make sure that the Will contains all the provisions you have requested.
  
• Avoiding potential undue influence. At this time any family members who may be present must leave the area. Does the execution of this Will represent a statement of your true intent?
• Signing. You sign the Will in the presence of the two witnesses.
• The two witnesses sign and date the Will after you have signed.
• Self-proved affidavit. This is incorporated into your Will and is acknowledged by a Notary Public.
• Your documents. Your Will is now fully executed. I will make a copy for the firm's files, then give you the original, executed Will to take with you. The firm does not store original documents on behalf of its clients.
• Instructions on storing the Will. I will discuss the best practices for safe-keeping of your Will.
• Conclusion. After the execution process is complete, I may address any further questions you may have. You will also receive a Termination of Engagement letter, as the firm's representation in your matter is now complete.

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If you don't have an estate plan, now is a good time to determine the best course of action for you and your family. Contacting a qualified estate planning attorney is the first step.