Some Upcoming CLEs From Mitchell Hamline.

Here are a few interesting CLE seminars from Mitchell Hamline's Health Law Institute.

• Combating New & Emerging Health Care Fraud Schemes Through Collaboration & Innovation. Thurs. March 25, 2021, from 9:00 to 11:00 AM. Pending approval for 2.0 standard CLE credits. Cost is $40, $15 for Mitchell Hamline alumni. Register.
• The Ongoing Opioid Litigation & Its Impact On The Pharmaceutical Industry. Thurs. April 22, 2021, from 11:00 AM to 1:00 PM. Pending approval for 2.0 standard CLE credits. Cost is $40, $15 for Mitchell Hamline alumni. Register.
  

If You Died Tomorrow, Would You Leave Behind Conflict And Chaos?

You don't have an estate plan right now.

Maybe you have thought about it, and the fact you are here reading this article suggests that you are at least giving it some consideration. Thinking about what will happen to your assets after you die is not an easy subject to delve into, and not easy to discuss with family.

Yet my question stands. What would happen if you died tomorrow?

It's a heady question. Some people are content to not have a Will. To not deal with it. To simply let the chips fall where they may. They may believe that the courts will work it out, or that their descendants will "do the right thing." Let's look at how those two possibilities may play out.

Will the courts work it out?

If you don't have a valid Will, that is just what will happen--the courts will work it out. Without your input. If you die intestate, your estate will need to be probated, which is to say that the court will call the shots in settling your estate. The probate court will appoint a personal representative to manage the process. The court-appointed PR may be a family member, maybe not. If minor children are involved, the court will appoint conservators to manage their inheritances, and may appoint a guardian to protect the persons themselves. 

Those appointed persons may or may not be people you wished to serve. The court will apply Minnesota's laws of intestacy in determining the distribution of your assets. How this goes may or may not be what you had wanted. 

The Minnesota intestacy laws were designed by legislators to make the best attempt at being fair and equitable. A fail-safe, if you will. But essentially blunt tools. As you can see, not having a valid Will throws a lot of "may or may nots" into the equation. Without a valid Will, you won't be able to provide guidance.

Will your children do the right thing?

As a parent, you may believe that your kids will make the right choices, will be fair, and will get along. But losing a loved one is stressful, and grief can cloud one's vision. Children can--and often do--act much differently after the death of a parent. They all have a legal and financial interest in your estate. And stress is a big influencer. Competition and quarreling are more common than you might think, even among otherwise well-behaved siblings. Without your wise guidance, they can be drawn to infighting, perhaps leading to drawn-out court battles. Again, you won't be able to provide guidance.

If you don't have a plan for your estate, all of that is left on the table for the court to sort out.

Don't leave open that chance for conflict and chaos. You worked hard to build your estate assets--don't leave it to chance. Talk to a qualified estate planning attorney and set a plan in motion to protect your assets and the financial future of your loved ones.

What's In (And Not In) Your Probate Estate: A Quick Outline.

Your Will governs only those assets which fall within the probate estate. Accordingly, the probate estate is subject to administration by a probate court. However, there are many assets that are not part of the probate estate--they are not distributed by a Will and thus not subject to the probate court. 

Not long ago I discussed property that's ordinarily not distributed by a Will. To follow up on that, I decided to post this quick list of which assets are--and aren't--disposed of by a Will.

Below is a brief outline of the types of assets that generally fall into each category. This list is by no means exhaustive, but it covers the more common items.

Probate Assets (Distributed by Will):

• Real property titled in the decedent's name only or property in which the decedent is a tenant-in-common with other persons. This includes homestead, vacation property, business and rental properties.
  
• Personal property.
• Funds in bank accounts.
• Beneficiary assets with predeceased beneficiaries or no beneficiary designations. 
• An interest in a partnership, corporation, or limited liability company.
  
• Assets left out of a trust.
• Financial instruments that name the decedent or the decedent's estate as beneficiary.
  
• Any other assets titled solely in the decedent's name.
  

Non-Probate Assets (Not Distributed by Will):

• Real property titled jointly or subject to a transfer on death deed (TODD).
• Bank account funds jointly owned or subject to a payable on death (POD) provision naming someone else.
• Financial instruments with designated beneficiaries, such as life insurance policies, pension funds, investments, etc. 
• Motor vehicles registered with a POD provision in the titles.
  
• Property held in a trust. 

Avoiding Probate.

Administration by a probate court may be avoided in cases of certain small estates. This may be accomplished by executing a transfer on death deed for your real property. If the aggregate value of your remaining personal property is less than $75,000, probate may not be necessary. Setting up POD provisions on bank accounts and motor vehicle titles may enable you to lower the remaining probate estate value below that maximum.

A qualified estate planning attorney can help you sort through your assets and develop a strategy for preserving them for your loved ones.

Do You Know Where Your Estate Planning Documents Are?

When someone dies, their surviving loved ones have enough pain to deal with: planning funeral services, contacting relatives and friends, wrapping up the decedent's affairs. What those loved ones do not need on top of all of that is to be scrambling to locate the estate planning documents.

If you have executed a valid Will, you have taken a major step toward ensuring peace of mind, knowing that your loved ones will be taken care of and your assets respected.

But that major step is severely set back if your survivors cannot find your Will.

Fun fact: The probate courts in Minnesota only recognize the validity of a Will if it is the original, executed (signed) version.

If your original, signed Will cannot be located, or if only a copy is found, the court may make the assumption that you had intended to revoke your Will. The court can't be sure that there isn't another Will floating around out there.

That means the court may treat your estate as if you never had a Will in the first place and will have no choice but to apply the laws of intestacy to distribute your estate assets. Thus, your property may be given to persons you never intended to receive it. The court may also appoint as personal representative someone you never would have chosen.

The question is: where to store your Will in a manner that is secure, yet accessible to your loved ones after you have passed away?

One option is to store your Will at home in a fire-resistant safe or file cabinet. It would be easily accessible in the event you want to review the document, and your children or personal representative can be given access to the safe with a key or combination.

However, there are some disadvantages to this. You may forget to return the documents to your safe after reviewing. Safes can be broken into or stolen, and keys can be lost. If your documents are easily accessible to you, they may be easily accessible to interloping family members as well. And and even the most robust home safe may not endure an extensive house fire or a flood.

Another option is to store your Will in a safe deposit box. Being located inside banks, safe deposit boxes are more secure than home storage. Another advantage is that only certain designated persons, such as a personal representative, may access the contents of a safe deposit box after the owner has died. Family members may be able to obtain copies of documents from a safe deposit box, but only the person designated to have access may obtain the originals located inside. 

However, it is critical that the person have knowledge of the safe deposit box so that they know where to look when the time comes. If the box is only signed to the decedent and the keys cannot be found, the box will need to be drilled open and contents inventoried, adding expense and delays in probating the Will.

A third option is to store your Will at your attorney's office. Not all law firms do this (mine doesn't), but those that do have systems for long-term document storage. However, if the law firm closes up or the attorney retires before you die, it may be difficult for your personal representative to hunt down the original Will. Be sure to inquire up-front about the law firm's document retention policies and find out their contingency plans for custody of documents in the event of a firm closure or attorney retirement.

A fourth option--and the most secure--is to file the Will for storage in the probate division of the district court. There is a one-time storage filing fee of $27.