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Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

March 2015 Archives

Is a Do-It-Yourself Will Good Enough?

We all love a good DIY project, but leave the will drafting to a licensed attorney.  People regularly ask for our opinion of wills they created online from a website, or from a do-it-yourself source like LegalZoom.   LegalZoom’s own disclaimer shows the inadequacy of the documents available for purchase, explaining the “legal document service is not a substitute for the advice of an attorney.” The point of a will is to protect all that hard earned money when you die, so why leave it up to chance to save a few dollars?  According to Warren Buffet, “Price is what you pay.  Value is what you get.”

The overall goal of a will is to avoid intestacy; to preserve your estate to be distributed to your heirs under the law.  A will is a basic dispositive instrument drafted by your attorney, likely taken from a state practical drafting manual, and then appropriately crafted to protect your estate.  However, as attorneys, we have to continuously update our documents to reflect changes in federal and Minnesota estate and gift tax laws, IRS regulations, new legislation and case law.  While documents may start out quite basic, your family likely does not look the same as every other family, such as the blended family or those pesky in-laws.

When you pass away, a Minnesota probate registrar is looking for particular language in a will that based on our experience probating wills, is not included in an online or DIY version of a Minnesota will.  Here are some very basic examples of mistakes we have found in wills: 1) Excluding a clause that requests informal administration of the estate in Minnesota can allow an heir or personal representative to request formal supervised administration, which may end up costing the estate more money; 2) Excluding a survivor clause in married couple’s wills can double the cost of probate if both spouses pass away within five days of the other; and 3) Listing co-personal representatives, but not including language that one personal representative may act without the other can complicate the administration. Or, let’s say you intend to exclude a child from your will, without specific language disinheriting the child, the will can easily be challenged.  A will should not only address the current situation, but should anticipate the what ifs that may occur over the client’s lifetime.  We have even caught mistakes with proper will execution and a lack of self-proved affidavits, will signing 101 in Minnesota!

Understanding whether a will is needed and evaluating what provisions are appropriate for your estate is the invaluable assistance an attorney provides.  Drafting a will can be very straightforward; properly understanding and utilizing the provisions best for your estate, and then coordinating the will with the distribution of your other assets is the more difficult task.  Most likely, not all of your assets are probate assets--probate assets are assets held in decedent’s name alone that total over $50,000.  Probate assets are subject to probate and ultimately distributed by your will.   Assets that are held in joint tenancy or tenancy in common, or accounts with named beneficiaries are non-probate assets that will pass outside of the probate process.

For a free review of your current will or trust, please contact your attorney at Jaspers, Moriarty & Wetherille, P.A. and leave the DIY projects at home!

Bankruptcy Adversary Proceedings

As a component of my bankruptcy practice I represent parties in adversary proceedings, which are lawsuits within a larger bankruptcy case. These are most commonly in the form of a lawsuit brought by the Trustee to claw back property into the bankruptcy estate on account of either a preferential transfer, giving one creditor more than their fair share, or, because of a fraudulent conveyance, which is basically where some type of fraud or constructive fraud took place in regards to the transfer making the deal unfair and allowing the trustee to suck the money out of the hands of the person that received it. Sometimes these suits involve bad actors - people involved in a scam and committing a fraud or similar scheme. Think someone giving away their house to their mother to pay off a debt because they know their mother won't get paid if the bankruptcy goes forward. However, it sometimes targets people that are really innocent in the whole deal but because the deal was bad, the money is still subject to claw back. As an example think about the innocent investors in a Ponzi scheme - people that invested with the scam architect who later were paid part of the "profit" from the scheme without that investor being wise to the fraudulent nature of the enterprise.

If you are served with papers in an adversary proceeding you only have thirty days to formally respond - if you fail to do so you will lose automatically. If you are considering bankruptcy, if you know a loved one or business partner is looking down that road, or if you actually get served with papers, call our office at 952-445-2817 to talk about your options.

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