Simultaneous Deaths Of Both Spouses.

The chance that two spouses would die at the same time is very slim. Nevertheless, it is a non-zero risk and, painful as it may be to think about it, such a tragic situation should be considered when making your estate plans.

Under the common law, if two spouses died close to the same time, it had to be determined by medical evidence which person actually died first, even if the deaths were only a few moments apart. The estate of the spouse that died first would pass to the second spouse, and then the second spouse's estate (which is combined with the first spouse's estate) would pass to the second spouse's heirs. This scenario required two probates!

However, it is often impractical or even impossible to determine the order of two deaths with any certainty.

Enter the revised Uniform Simultaneous Death Act, which Minnesota incorporated into its Probate Code in the 1990s. Under this Act, if two spouses die within 120 hours of one another, and there is no Will, the law treats each spouse as having predeceased the other. Therefore, the law views it as a simultaneous death, even if the two spouses died up to 120 hours apart. Then, the probate court applies the laws of intestacy to determine which beneficiaries will share in the two spouses' combined estate.

Having a poorly-drafted Will isn't always helpful, and in fact can complicate things. If each spouse's Will names the other spouse as sole beneficiary, without clearly naming contingent beneficiaries, problems can arise. The Will does not give instructions as to how the combined estate is divided by the couple's descendants, and the probate court must apply the laws of intestacy to distribute estate assets.

Here's where things can get even more complicated.

Suppose the couple have a blended family, i.e., each spouse has children from previous relationships. Each spouse has a Will, favoring their respective children. Perhaps these Wills were executed by each spouse before they were married, and they never executed new Wills after they were married. If both spouses are deemed to have died simultaneously under the law, whose children receive shares of the estate? The outcome is uncertain.

For example:

Adam and Betty get married. Adam has a son from a previous relationship, and Betty has two daughters. Adam and Betty each have Wills executed before they got married, and they never got around to getting new Wills.

Then, a terrible tragedy strikes. Betty dies right away, but Adam lives 3 more days. Under the law, the probate court treats Adam as having died before Betty, and Betty as having died before Adam. Simultaneous deaths.

Whose children receive shares of Adam and Betty's combined estate? Again, an uncertain outcome. There may also be uncertainty for any gifts to individuals outside the family, charitable donations, etc., if the two spouses' Wills differ on those issues.

To prevent that, Adam and Betty could have had Wills drafted that names one of them to have survived the other, and the Will of the presumed "surviving" spouse would govern as to contingent beneficiaries. There may be some tax benefit in doing this, as well.

* * *

If you do not have an estate plan, or your existing plan is dated or you're just not sure, it would be wise to seek a qualified Minnesota estate planning attorney.

Why Do People Put Off Getting An Estate Plan?

I hear many reasons--excuses, really--why people are hesitant to having an estate plan drafted. Here are a few common objections:

 

"I don't need one now, I'm too young."

A well-crafted estate plan is not just for older people. Unfortunately, people can die at any time. It would be wise to have a valid estate plan in place, regardless of your age. 

"I'll deal with it later."

Sure, life's hectic, with careers and family responsibilities. However, it doesn't take a lot of time to have a qualified practitioner craft an estate plan that helps ensure your assets go to those you want to receive them.

"I don't have enough assets for an estate plan to matter."

Even small estates can and should be protected. Sentimental or family heirlooms are important, even if their monetary value isn't great. Even if you don't own real estate or have large monetary assets, you still should consider protecting the assets you do have and make sure your loved ones would receive them if something happened to you.

Keep in mind that many disagreements happen over modest estates.

 

"My kids will just sort things out when I'm gone."

If you don't have a valid will, Minnesota intestacy law decides where your assets go after you die. The law generally follows "next of kin," but that may not be what you want. Maybe you wish to give assets to children unequally, or perhaps leave out one who is estranged or has addiction issues. Intestacy doesn't factor that in. Want to leave something to a close friend? Sorry, that cannot be done without a valid estate plan. Would you like to donate to a charity? Without a valid estate plan that won't happen.

Another issue to consider is who will be responsible for administering your estate when you're gone. Without an estate plan to nominate a person or persons to be the Personal Representative of your estate, it may be up to the probate court to make that decision. The person they appoint may not be one you would choose--perhaps even a total stranger.

 

"It costs too much." 

A basic will is a very powerful instrument and can be very affordable, especially when you consider the time and expense your loved ones would endure if they have to sort through your assets, deal with the probate court, etc. (See intestacy, above)

"I'm not comfortable talking about death-related issues."

It's never easy. Talking about your death can be unnerving. Wouldn't you rather solve this issue now and not have to worry about it later? Having an estate plan in place can bring peace of mind.

* * *

Protecting your hard-earned assets means having confidence in knowing that those you care about will receive them. There's no time like the present. Contact a qualified Minnesota estate planning attorney to find out how to get your estate plan started.

 

 

"If I Die Without A Will, Is My Ex-Spouse Entitled To Any Of My Estate Assets?"

The short answer: No.

If you die intestate (leaving no valid Will), Minnesota's intestacy laws exclude ex-spouses. Therefore, an ex-spouse is not entitled to your estate assets. Instead, your assets would be distributed based on the state's intestate succession law: to current spouse, children, parents, siblings, etc. Next of kin.

However, if your divorce decree requires division of marital property and you still have any of that property when you die, your ex would have legal claim based on the decree.

For example: if the decree requires dividing proceeds from selling the house, but you die before the sale is completed, your ex-spouse is entitled to the share of the property, per the terms of the divorce decree. Thus, your ex could make a claim against your estate in probate court. 

As you can see, these types of scenarios are governed by the terms in the divorce decree.

Another issue would arise if your divorce is not final at the time of your death. You would still be legally married at that time, and your spouse would be entitled to at least a spousal elective share under Minnesota law. And if you have no valid Will, guess what? The intestacy laws put your spouse at the head of the line for inheriting your estate assets.

If you are divorced and you haven't already done so, it is a good idea to review your financial instruments that have named beneficiaries, such as insurance policies, retirement plans, investments, and assets with payable-on-death provisions such as bank accounts and real estate. Your ex-spouse may still be named as a beneficiary and you may wish to change that. Fortunately, Minnesota law automatically revokes the beneficiary designation of an ex-spouse, so revisiting those instruments is mainly a matter of naming new beneficiaries.

Finally, if you have Power of Attorney or a Health Care Directive that names your ex-spouse as a fiduciary, you may wish to review those documents. Minnesota law also automatically revokes the fiduciary status of an ex-spouse, so revisiting those allows you to choose new fiduciaries.

* * *

If you are recently divorced or are currently in the divorce process, it would be a good idea to seek out a qualified attorney to discuss your estate planning needs. Your divorce attorney should have some knowledge of how your estate could be impacted by divorce, and they may be able to help with some of those concerns. However, it would be wise to seek separate estate planning counsel to ensure all of your estate-related issues are addressed and up-to-date.

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.

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.

Hope Is Not A Strategy.

[Despite the ominous title, this article is not about despair. We get enough of that from the news every day.]

Instead, this is a discussion about what can go wrong if you decide to put off your estate plan, or ignore it altogether. By relying on hope that "the legal system" will somehow make things turn out right when the time comes. By not weighing the consequences that might bite back if you leave your estate to the winds of fate, luck and wishful thinking. 

Granted, there are times in life when embracing hope is an uplifting and comforting thing. But framing your estate plan around the hope that it will take care of itself is not one of those times.

Let's look at a few ways things can go sideways if you ignore having a well-crafted estate plan.

Not having a Will.

While there are intestate succession laws to help distribute assets of a decedent who did not leave a Will, those laws are rather blunt tools, only intended as a sort of "safety net" to help keep assets in one's family to the extent possible. As such, it cannot anticipate every situation. Your assets may end up being distributed to family members you hadn't planned to give to, or in amounts you might not have agreed with.

Not having a Will also means that the probate court will appoint a personal representative to manage your estate assets. That person might be someone you wouldn't want serving in the role. It might be someone you don't even know. And you won't be there to make a better choice.

By having a Will, you can direct your assets to the people you want to receive them, in the amounts you choose to give. You can give assets to step-children, distant relatives, people outside your family, or to charities, choices that intestate succession doesn't accommodate. With a Will you can select personal representatives whom you trust to oversee your estate and carry out your wishes. You can also nominate guardians and conservators to act for the benefit of minor children.

Not having a Durable Power of Attorney.

If you become incapacitated, who takes care of your day-to-day financial needs? Who pays the bills, runs to the bank, manages your small business, deals with insurance companies and government agencies? Without a Durable Power of Attorney, you have no trusted agent assigned to take care of your financial affairs when you are unable to make those decisions for yourself. It may be necessary for a court to appoint a conservator to act on your behalf.

Not having a Health Care Directive.

What happens if you are unable to make health care decisions on your own? What medical treatment do you want and not want to receive? Where do you want to be treated? Who steps in to ensure that your values and wishes are being respected? If you don't have a Health Care Directive, the doctors have no guidance as to your preferred course of treatment. You won't have an agent in your corner to advocate for your best health care interests.

Not updating beneficiary designations on your POD accounts.

Have you looked over the beneficiaries named on your payable on death accounts, like life insurance, investments, and retirement accounts? It is important to do a review of those from time to time. Has your marital status changed? Is there a family member who is going through difficulties in life, like money problems or addiction issues? Are there new children or grandchildren? Have you lost a loved one recently? These are all events that should inspire you to revisit your accounts to make sure the named beneficiaries are up to date and those nominations reflect your current wishes. 

And by the way, if you have a Will, any of the above events are good cause for you to revisit that document, as well.

Hope is not a strategy. 

Relying on it to save the day in regards to protecting your estate is folly. But looking at the issue in a positive light, you can be proactive and start making plans for the future of your family. It's never too late to begin. A qualified estate planning attorney can help you get started.

Why You Need To Name Alternates In Your Will.

I'm going to broach a subject that is never easy to discuss and may cause some discomfort: The possibility that one or more of your descendants may not outlive you. As stressful as this may be, it is something that you may need to consider when deciding what to do for obtaining your Will.

Alternate beneficiaries

It's never easy to think of your children not surviving you, and I'm not trying to be morbid here. In a perfect world our children will live well beyond us, their children will outlive them, and so forth. But tragic things happen, and it's smart to have alternatives in place when naming beneficiaries of your estate. What if your spouse predeceases you? Or if one of your descendants passes away before you do? Where do those shares go? What happens in the remote chance that several descendants are not alive to receive their inheritance?

By not planning for contingencies, if a child passes away before you do and the court has to make the decision, that deceased child's share may not be distributed according to your wishes. The court applies the laws of intestacy to that part of the Will that fails, due to there being no nominated contingent beneficiary.

 

Do you want the share to be passed down to the deceased child's children (per stirpes), or do you want it to be shared by your other surviving children? There are no wrong answers here--only you know what's best. It's important that you plan for it and talk it over with your attorney.

Alternate fiduciaries

When the time comes to administer your estate many years from now the personal representative you have nominated in your Will might not be available or able to serve. It's possible that the personal representative may choose not to serve, perhaps due to constraints in their busy life. Serving as a fiduciary is voluntary--choosing to bow out is their prerogative if their life is too hectic at that time or if it creates some hardship. And there is the possibility that your personal representative will predecease you.

That is why you should consider nominating at least one successor personal representative in your Will so that there is a backup person you trust to take care of your estate after you are gone. Because if your primary personal representative cannot serve and there is no nominated successor in your Will, the probate court will appoint one without your input.

The precautions outlined above for personal representatives should also be similarly applied to any custodians, guardians or conservators you have appointed in your Will.

* * *

This subject is a lot to process and it requires some planning. Give it some thought as you complete the intake questionnaire prior to meeting with your estate planning attorney.

Providing For Your Step-Children In Your Will.

If you have step-children and you want them to inherit, you must state those wishes in your Will. If you don't, then only your blood relatives and adopted children will inherit.

If you die without a valid Will (intestacy), your estate will pass to your spouse, and if there is no surviving spouse, then it passes to your children (natural and adopted) in equal shares. But under the laws of intestate succession, there is no provision for step-children to inherit.

A Will can help ensure that all of your children--including step-children--will receive from your estate. In addition, you can nominate guardians and conservators in the Will, to be responsible for your children and their inheritances, in the event both parents pass away before the children reach the age of 18.

These are just a few more reasons why it is important to have an estate plan, such as a Will. A qualified estate planning attorney can help you develop a plan for your assets and your family.

What Happens When You Die Without A Will?

Minnesota, like many states, has a backstop for the estates of people who die without a valid Will (intestacy). This backstop, the Minnesota intestacy statutes, which are derived from the Uniform Probate Code, is not designed to anticipate every family situation. Instead, it merely tries to ensure that close family members are not left out of an inheritance altogether. It's a very basic safety net, and the law sets forth a hierarchy of who inherits--called intestate succession. Therefore, what the state provides for settling your estate may be quite a bit different from what you would choose to do.

The probate courts have the power to appoint the personal representatives to administer estates. If you leave a valid Will which nominates someone to act as your PR, the court will generally accept that person, as long as the person has not otherwise been disqualified. But if you die without a Will the court names a PR without your input. The court-appointed PR could end up being a family member, possibly one you would not have chosen. Or perhaps a complete stranger.

What are some things that could happen when a probate court applies the laws of intestate succession to your estate? 

It depends on who survives you and their relationship to you.

✦ If you are single, with no descendants, your intestate estate will be distributed entirely to your parents, and if your parents are no longer alive, then it goes in its entirety to your siblings. If no surviving siblings, it passes to nieces and nephews.

✦ If you are married, your surviving spouse inherits everything.

✦ If you are in a relationship, but unmarried, your surviving partner receives nothing.

Children's shares:

If you die without a Will, your children will receive a share of your estate. The size of the share depends on the number of children you have, your marital status at the time of your death, whether your children are also descendants of your spouse or if they are your spouse's children from a previous relationship.

✦ The state has certain definitions of who are counted as your "children" in terms of receiving an intestate share. Children who were born during your marriage, children who were adopted, children born outside of the marriage, children conceived by you but born at least 120 hours after your death, and children conceived by assisted reproduction are all eligible to receive a share of your estate under the laws of intestacy.

✦ Foster children and stepchildren you have not legally adopted are ineligible to receive a share, as are children you have placed for adoption and were legally adopted by another family.

✦ A grandchild receives a share only if that grandchild's parent (your son or daughter) is no longer alive to receive a share. If you want to give assets directly to a grandchild, you need a Will.

As you can see from these examples, intestate succession could distribute your estate property in ways you had not planned on, leaving some intended heirs left out and distributing to others you never wanted to give to. An omitted heir might lose an inheritance they were counting on, while an unintended heir who receives a valuable share of property (such as real property) may be unable or unwilling to bear the burden of taxes, maintenance, etc. In addition, if you had intended to give property to someone outside of your family, such as a friend or perhaps a charity, the laws of intestacy will not provide for such a distribution.

 

* * *

Having a valid Will can help ensure that your property will go to the people you choose. Receiving the guidance of a qualified estate planning attorney can help you get started.