Why do I need a Will?

Did you know that almost half of people ages fifty-five (55) to sixty-four (64) pass away without executing a Will? The younger the individual is, the less likely they are to have thought about planning for the end of their lives. While no one likes to think about death, it is important to move beyond the discomfort and avoid procrastination. The hesitation to address such a morbid topic is understandable, but failing to do so can be costly to your grieving family during a time where clarity and certainty offer immense comfort.

What happens if I don’t have a Will?
Without a Will, something called intestate succession occurs. The court will determine which relatives inherit what amounts through a default legal analysis. This analysis walks through your family tree, allocating value determined by your legal relationship to the person such as a living spouse, living children, and even your parents. If no immediate relatives are living, intestacy looks more broadly at your family tree to determine your closest kin. Upon exhausting the family tree without finding living heirs, your estate can be given to the state through a process called escheat. Having a Will allows you to alter that process and gain something very important: control.

What can I control through a Will?
A Will does several important things, including naming a person to handle your affairs after you pass away (an executor or personal representative), designating who will inherit what, and also providing guardians for any minor children you may leave behind. Unlike the intestacy process above, you can name specific individuals to inherit under your will such as relatives, friends, churches, schools, or charities. A Will does not transfer or control anything while you are living. Once a Will is executed it does not expire, however, that does not mean all Wills are permanent. A Will may be revoked through specific actions at any time and can also be changed with subsequent additions called codicils.

When should you consider creating, reviewing, or changing a Will?
Reasons to consider or revisit an estate plan incudes, but are not limited to:

  • Marriage
  • Having children
  • Receiving an inheritance or large sum of money
  • Divorce or legal separation
  • Military service
  • Extended periods of traveling
  • A serious health diagnosis
  • Owning a family business
  • Approaching retirement
  • Owning a pet or difficult to value asset

*Once you have created a Will and/or a holistic estate plan, it is a good idea to review your personal/family situation every five years at a minimum, regardless of the above occurrences.

Do Wills help my estate avoid probate?
A common misconception about Wills is that they are drafted to avoid the probate process. That is completely false. Wills are drafted to avoid intestacy, and actually are part of the probate process. Probate consists of identifying individually owned assets that have not already been distributed and determining what the Will instructs to be done with these assets. This is not some daunting, overly-complex procedure to be feared, as long as the Will is clear and appropriately disposes of your property. A typical probate in Minnesota may last anywhere from nine to eighteen months, with variations related to complexity, conflict, and court scheduling. The Will acts to speed that process up and limit probate costs.

Consider speaking with an Elder Law Attorney to explore and better understand your options during the Will creation and probate process. Having a clear understanding of the law and the requirements involved in creating a Will are not only crucial to having your final wishes upheld, but easing your family through one of the most stressful experiences they will ever encounter.

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