What Is a Will?
A will is a legal document by which a person describing how their property is to be distributed upon their passing.
Does Everyone Need A Will?
The law does not require that a person have a will.
When someone passes without a will, Minnesota’s inheritance laws will control how the estate is divided. The deceased person’s property will go to their spouse or closest relatives. If there is a living spouse or children, the property will go to them by a set formula. If not, the property will descend in the following order: grandchildren, parents, brothers and sisters, or more distant relatives if there are no closer ones. Click here to view a “Table of Minnesota Heirship.”
A will may not be necessary if someone has made provisions so that all their assets will pass without one. Trusts, life insurance policies with named beneficiaries, or joint property interests will pass without need of a will.
A will can be used to to
- leave property to a friend or a charity
- to give certain items to certain people
- or to leave someone out who would otherwise inherit
A will may also to appoint a specific person to handle the estate.
What Rules Apply to Wills?
In Minnesota, the following rules apply to wills:
- One must be at least 18 years old and of sound mind to make a will;
- The will must be in writing;
- The will must be signed by the testator (the person whose will it is);
- The will must be signed by another person at their direction and in their presence, or by their conservator pursuant to a court order;
- The will must be witnessed by at least two people, both of whom must also sign the will; and
- The testator must intend for the document to operate as a will.
What Is a Self-Proved Will?
A will is self-proved when the testator and witnesses acknowledge in affidavits that:
- the will was signed and executed voluntarily,
- within the presence of at least two witnesses,
- that the testator is over 18 years old,
- not under undue influence,
- and of sound mind.
A will may be made self-proved at the time it is executed (signed) or at any time thereafter.
What Is in a Will?
Generally, the following basic elements are included in a will:
- The name and place of the testator’s residence;
- A description of any assets wished to be given to a specific person;
- Names of spouse, children, and other beneficiaries, such as charities or friends;
- Alternative beneficiaries, in the event a beneficiary dies before the testator does;
- Establishment of trusts, if desired;
- Cancellation of debts owed to the testator, if desired;
- Name of a trustee for any trusts created;
- Name of a personal representative to manage the estate;
- Name of a guardian for minor children;
- Name of an alternative guardian, in the event the first choice is unable or unwilling to act;
- The testator’s signature; and
- Witnesses’ signatures.
Can A Spouse Or Children Be Left Out Of A Will?
In Minnesota, if a spouse is to be left out of a will, it must have language that specifically and expressly excludes the spouse. Otherwise, the spouse may claim up to one half of the estate even if the spouse is not mentioned in the will. The amount of money the spouse would get depends on how long they were married. The spouse has an option of whether or not to take this amount.
A child may also be disinherited in a will. Like a spouse, a child, must be specifically and expressly disinherited in the will. If a child appears to have been omitted from a will by error or because the child was born after the parent’s death, the child may still be entitled to a portion of their deceased parent’s estate.
What Is a Personal Representative?
A personal representative (also known as an “executor” or “administrator”) is the person who oversees payment of the debts and distribution of assets according to the will. A personal representative is considered a fiduciary. This means that he or she must observe a high standard of care when dealing with the estate. The personal representative should be identified by name in the will. Most people choose their spouse, an adult child, a relative, a friend, a trust company, or an attorney to fulfill this duty, but anyone can be named personal representative in the will.
A will may appoint more than one personal representative. When there is more than one, all representatives must agree on any decision regarding the estate unless the will provides otherwise.
If no personal representative is named in a will, a judge will appoint one.
Responsibilities usually undertaken by a personal representative include:
- Filing the will, an inventory of assets, and other documents with the court;
- Paying valid creditors;
- Paying taxes;
- Notifying Social Security and other agencies and companies of the death;
- Canceling credit cards, magazine subscriptions, and similar consumer items; and
- Distributing assets according to the will.
What Is a Guardian?
In most cases, a surviving parent assumes the role of sole guardian of your minor children. However, if neither spouse survives or if neither is willing and able to act, a guardian may be named in the will. The guardian should be over 18 and willing to assume the responsibility. A will can name a couple as co-guardians, but that may not be advisable. It is always possible the guardians may choose to separate at some later date; if so, a custody battle could ensue. If a guardian is not named to care for children, a judge will appoint one.