Let's look at some reasons why a valid Will should be in your estate planning portfolio.
First of all, not having a valid Will means a probate court must decide how your assets are divided up and distributed to your descendants. This is called intestacy. Intestacy is merely a fail-safe created by the Legislature, an attempt at a one-size-fits-all solution, but it is far from perfect.
Having a valid Will helps ensure that your assets go to the persons you want them to, in the amounts you choose. Without a valid Will, Minnesota intestacy law requires the probate court to distribute your assets based on a certain hierarchy, a particular order of who is in line to inherit your estate assets. Without a valid Will giving instructions, the court has to rely on this state-mandated default to determine how your estate is to be divided. That hierarchy may or may not be what you wish to happen.
A valid Will allows you to tailor the proportions of your estate assets you wish to give to family members. Maybe you don't want to divide up assets evenly. Perhaps there is a child who is closer to you or needs more financial help and deserves more. Conversely, there may be a family member who, due to dependency issues or poor money management skills, or who is estranged, is deemed one who should receive less--or none at all. Without a valid Will, the probate court will likely distribute your assets evenly between your descendants, without your input to the contrary.
A valid Will enables you to give certain items of property or money--specific gifts--to individuals or charities. The laws of intestacy make no provision for specific gifts to be given to people outside of the shares given to the legally-mandated heirs. Want to donate some money to a friend or relative, or a charity? Sorry, the laws of intestacy do not accommodate those kinds of wishes. You need a valid Will to make those choices.
A valid Will allows you the freedom to nominate persons to act as your fiduciary--the Personal Representative (executor) of your estate. The job of the estate PR is absolutely crucial and I cannot emphasize enough the importance of this selection. You may have certain individuals in mind whom you can trust to manage your estate after you are gone. Without a valid Will, the probate court decides who will act as the fiduciary. The person they choose may not be the person you want acting in that important role. The PR collects estate assets, pays valid debts, and distributes the remainder to the beneficiaries. If you see no other reason to obtain a valid Will, this is the one that should tip the scales in favor of it.
If you have children who are under the age of 21, a valid Will allows you to nominate a custodian to manage the minor's inheritance until that minor attains the age of 21. Without a valid Will, the probate court chooses that custodian.
If you own real property, your estate must pass through probate, unless you have executed a Transfer On Death Deed (TODD). With a valid Will your chosen Personal Representative will be someone you can trust to work with the probate court, and handle any real estate transactions.
Note that I have used the term "valid Will" throughout this article. I want to point out that just having some "will" may not, in itself, be sufficient. You need a carefully constructed Will, a legal document that reflects your values and wishes. This should be a document crafted by a competent Minnesota estate planning attorney, ensuring that it complies with Minnesota law. Sure, you could go DIY, download some template from the internet and fill in the blanks. But without the careful guidance of a competent attorney who understands your wishes and the legal landscape, your money-saving DIY document may not hold up to legal scrutiny after you die. Is it worth the risk, just to save a little money?
Preserving your hard-earned assets for the security of your family members is too important to leave to chance. Contact a licensed Minnesota attorney to begin protecting your estate.