Archive for Wills

Do You Need a Will?

Do you need a Will if you live in Minnesota?

The answer is “yes” if you want to control who receives your probate assets after you die, or if you have minor children. A Will is the only way that parents can hand-pick a guardian to take care of their children under the age of 18 if both parents die.

Why did the previous paragraph contain the qualifier “probate” assets? Doesn’t a Will cover all my assets? What is a probate asset?

A Will does not cover all your assets.  It covers only probate assets.  To define “probate asset”, it’s helpful to understand what doesn’t qualify as a probate asset in Minnesota. The following are not probate assets: assets that are jointly held; assets that were held by the trustee of your revocable living trust; assets designated at your bank as payable-on-death or at an investment firm as transfer-on-death accounts; and assets that have beneficiary designations such as life insurance and retirement assets. (Note, however, that if you designate “my estate” as the beneficiary (which is typically not recommended), you’ve suddenly made the asset a probate asset.) In some situations a Transfer on Death Deed for your real estate will transform that asset to a non-probate asset. Assets not on the above list are probate assets.

A Will is how you exercise control over your probate assets.  Without a Will, the state of Minnesota has a law that dictates what happens to your assets after your death, and you may not like that distribution. The applicable Minnesota statute for the no-Will situation depends on various factors, such as whether there’s a surviving spouse, whether you have surviving children, and whether you have children from an earlier marriage.

A Will gives you control — that you otherwise would not have — to control who gets what of your probate assets, and in what proportion. 

A Will also enables you to nominate someone to be the personal representative – i.e. the person who administers your estate after your death. Your act of selecting someone as personal representative may help avoid fights among your relatives after your death.

Consult with an estate planning lawyer to consider the strategy that might best meet your goals.

©2019 Wittenburg Law Office, PLLC. All rights reserved.

Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney licensed to practice law in the state where you live. Wittenburg Law does not expressly or implicitly warrant the accuracy or reliability of any of the Blog’s contents. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 952-649-9771    bonnie@bwittenburglaw.com   www.bwittenburglaw.com

No Will? The Danger Behind Common Excuses

Ah, the excuses people use for not having a Will!

Yes, there’s some expense and time involved in creating an estate plan, but the headache, heartache and expense that comes from not having an estate plan could create a bigger problem.

Bottom line: an estate plan gives your family relief that they know what you wanted after your death, and it gives you the peace of mind that you’ve set things up the best that you could for your family.

Here are some common excuses, and why they aren’t good excuses.

Excuse #1: I’m not rich. It doesn’t matter. If you want to control who receives your assets, you need a Will.  Also, sometimes the biggest fights are over the assets in the smallest estates. In addition to headache and heartache, fighting can chew up more of the estate’s assets than ever would have been the case had the deceased created an estate plan. Worse yet, the fighting sometimes permanently splits up families.

Excuse #2: I’m not planning to die soon. We’re probably all a bit guilty of this sentiment, but who knows what will happen? Isn’t it best to get an estate plan in place, and then continue on with life given the comfort and peace of mind that planning creates?

Excuse #3: My spouse and kids will get everything without a formal plan, and that’s what I want anyway. Not so fast. Are you on a second marriage with children from a first marriage? Are your children young? Are your children financially mature? Do you have concerns regarding your children such as creditor issues, an unhappy marriage, or drug problems? Situations differ. A well-crafted estate plan tailored to your needs and goals can go a long ways towards working around existing or potential future problems related to your spouse and children.

Excuse #4: I don’t care what happens to my assets after I die. Again, not so fast. Family fights seem to be more common when the deceased did nothing to plan for what should happen to the deceased’s assets, and the deceased did not determine who should lead the settlement of the  deceased’s estate.

Here’s an example of the benefit of estate planning: A childless couple with approximately $2 million in combined assets opined that they didn’t need a Will because – under Minnesota law — the surviving spouse would simply inherit the assets of the spouse that died first. While true, they hadn’t considered the next step. Namely, with no estate plan and at the later death of the surviving spouse, the remainder of their combined probate assets would be distributed to only the blood relatives of the surviving spouse under Minnesota law. An estate plan could have provided that some assets would also be distributed to the blood relatives of the first spouse to die. When that reality was considered, the couple opted for an estate plan.

The best practice is to create a comprehensive estate plan that addresses asset ownership and beneficiary designation discussions as well as preparation of Will and Trust documents.

©2019 Wittenburg Law Office, PLLC. All rights reserved.

Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney licensed to practice law in the state where you live. Wittenburg Law does not expressly or implicitly warrant the accuracy or reliability of any of the Blog’s contents. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 952-649-9771    bonnie@bwittenburglaw.com   www.bwittenburglaw.com

Why Do Women Need to Take the Lead in Estate Planning?

Why do women need to take the lead in estate planning?

Women need to lead because it is typically the woman that sits in front of the undertaker given that – statistically speaking — her husband will die first. Thus, she has to deal with the immediate arrangements involving the disposition of her husband’s body and the settlement of his estate. These tasks can be overwhelming – especially when accompanied by the grief process – unless she has taken an active role in the couple’s estate and funeral planning. » Read more..

A Revocable Living Trust Still Requires a Will

Minnesotans still need a Will even if they have a Revocable Living Trust.

The Will that accompanies a Revocable Living Trust is different, however, than a Will that is the sole testamentary document.

Typically, people think of Wills as saying “who gets what” of your assets.  When a Minnesotan has a Revocable Living Trust, it’s a chief task of the trust document to say “who gets what”. If more than one document described the distribution of all of the deceased’s assets, there would be confusion.

So what is the need for a Will when there’s a Revocable Living Trust? » Read more..

Keeping the Family Peace with Your Estate Plan

Studio portrait.

How can you increase the odds that your children won’t fight over the family assets after your death?

Children don’t always fight after their parents’ deaths. However, family fights happen more often than you might think.

Below are some steps that you can take to help reduce the odds of a fight breaking out. » Read more..

Should You Have a Will or a Trust?

Wooden dice with question marks on it over white background

Whether a Will or a Revocable Living Trust is best for you depends on your goals and situation.

An estate planning lawyer can help you review the pros and cons of each based on your needs and desires.

A Revocable Living Trust is more flexible than a Will, and may help married persons avoid Minnesota’s estate tax. However, a Revocable Living Trust is more expensive to set up, and requires you to proactively assign various assets to your Trust for your Trust to work properly. » Read more..

Second Marriage? No Will?

Minnesotans in a 2nd marriage that fail to sign a Will before death may fall victim to unintended consequences.

Minnesota law applies when there is no Will, and those laws may not be what the parties to the 2nd marriage expected.

For example, spouses often expect to inherit all of their deceased spouse’s assets even when spouses are in a 2nd marriage. That expectation is wrong if the deceased has children from a 1st marriage and the deceased did not create a Will giving everything to the surviving spouse. When there is no Will, but there are children from the deceased’s 1st marriage, Minnesota law states that the surviving spouse is to receive “the first $225,000” plus ½ of the rest. The other assets go to the deceased’s descendants. » Read more..

A Will is Not Enough

Surprise! Beneficiary designations on assets such as life insurance and retirement accounts trump anything that you state in your Will or Trust.

Thus, your estate plan is not finished just because you’ve signed a Will or Trust. You also must review your beneficiary designations to ensure that they are in sync with your overall estate plan wishes.

Several types of assets allow beneficiary designations, such as life insurance, retirement plans, health savings accounts, annuities, 529 accounts, Payable on Death (P.O.D.) accounts and Transfer on Death (T.O.D.) accounts. » Read more..

Must I Have a Will?

Skipping the writing of a Will may harmfully disrupt family dynamics, may result in distributions that you didn’t want or intend, and may increase the costs of settling your estate.

A Will, properly executed under Minnesota law, is your legal instruction to your survivors as to how you want your estate divvied up after you die.

If you don’t have a Will, Minnesota law has a plan for you, which you may not like. » Read more..

Must I Give My Kids an Inheritance?

Will your kids think less of you if they don’t inherit anything from you at your death? Will you feel guilty if you don’t – or can’t — provide them with an inheritance?

Inheritance of any size is a windfall for the children who receive it given that they most likely didn’t do anything to earn it.

Some wealthy parents don’t want their children to inherit more than a fraction of their estate out of concern that their children may not use it wisely or may develop bad habits.

Other parents may be concerned that health care costs, and the living expenses associated with living longer than past generations, may make it unlikely that the parents will have any money left to give to their children. » Read more..