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!