A will is a critical part of your estate plan to protect your family and preserve your assets. In your will, you can direct who manages your estate, who inherits your property, and who cares for your minor children. But how do you start? And how do you make sure your will is valid? This article answers your frequently asked questions about wills in Minnesota.
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What If I Die Without a Will in Minnesota?
If you die without a will in Minnesota, you are “intestate.” A probate court follows intestacy laws to distribute your property. While you may think your spouse will inherit your whole estate, that is not necessarily the case. Under intestacy laws, they may only receive part of your estate. And if you have stepchildren that you have not adopted or a significant other but are not married, they do not inherit your estate.
What Does a Will Do?
A last will and testament is a legal document that contains your instructions on what should happen when you die. In your will, you may name the following:
- Who manages your estate (your personal representative)
- Who inherits your estate, meaning your real property (real estate) and personal property (your beneficiaries)
- Who cares for your minor children (a guardian)
- Who cares for your pets
- Who may receive charitable donations (at your option)
A will also streamlines the probate process for your loved ones. Because you have made these decisions, the probate court follows the terms of your will. As a result, you reduce the length of probate, saving your family members time and money.
What Doesn’t a Will Do?
A will handles your personal property, real estate, and tangible assets, among other things. However, you own certain accounts and assets that do not transfer by a will. These “non-probate assets” transfer by a designated beneficiary or the terms of their documents. Examples of non-probate assets and accounts include:
- Bank accounts and investment accounts with transfer-on-death (TOD) beneficiary designations
- Retirement accounts, pensions, and IRAs
- Life insurance policies and annuities
- Assets owned as a joint tenant with right of survivorship
- Assets placed in a living trust
A bank account may have a transfer on death (TOD) designation, and insurance policies have a beneficiary designation. For all these accounts and policies, name a beneficiary and a backup beneficiary. Without a beneficiary, these assets will go into your probate estate.
Who Can Make a Will in Minnesota?
To be eligible to make a will under Minnesota law, a person making the will (called the testator) must meet the following requirements:
- Age: The testator is at least 18 years of age.
- Sound Mind: The testator has a sound mind, meaning they understand what property they own, how they want to distribute their property, and who they want to receive their property at their death.
The testator must have a sound mind when they sign their will. If you have concerns about whether you may make a will in Minnesota, you may want to contact an estate planning attorney for legal advice.
Does Minnesota Have a Statutory Will?
No. Minnesota does not have a statutory will form. However, it is easy to make a valid will as long as you follow the Minnesota statutes. You can create a legally valid customized will online that conforms to Minnesota state law.
What Types of Wills Does Minnesota Accept?
There are various ways you can make a will. However, Minnesota may not recognize certain types of wills.
- Handwritten Will: A holographic will is a will written entirely in the testator’s own handwriting but does not have witnesses. Minnesota does not accept holographic wills. But a will written in the testator’s own handwriting is valid if it follows the necessary signature and witness requirements.
- Oral Will: An oral will spoken aloud to witnesses is not valid in Minnesota.
- Electronic Will: The state of Minnesota recently passed the Electronic Wills Act. An electronic will is a will created or signed or stored in an “electronic, digital, magnetic, wireless, optical, electromagnetic, or other similar medium” that is retrievable in a recognized form and verifies that the writing is not altered after the signing of the will.
While you can write a will in your own handwriting, it is better to type or print your will. A printed will with witnesses is less likely to be challenged in court.
Can I Make My Own Will in Minnesota?
Yes. You can create your own will. You do not have to use an attorney to draft your will. If you know what property you own, who you want to give it to, and your other wishes, you are ready to make a will. Many people use self-help legal solutions such as FindLaw Legal Forms and Services to draft a Minnesota will. One significant advantage is that when your life circumstances change (such as the birth of a child, death of a beneficiary or fiduciary, or divorce), you can easily revoke your original will and create a new one. You do not need to make a codicil or amendment to your original will that may get lost.
How Do I Make My Will Valid in Minnesota?
It is easy to make your Minnesota will valid by adhering to the following state requirements:
- Signature: A testator must sign their will or direct someone to sign it for them. Or, in rare circumstances, if a testator has a conservator, someone who manages their affairs, there may be a court order for the conservator to sign for the testator.
- Witnesses: Two competent witnesses must see the testator sign the will or have the testator acknowledge their will or their signature on the will. A competent witness is one who is able to testify in court. Some states prohibit “interested witnesses,” that is, witnesses who may benefit from the will they are witnessing. In Minnesota, the signing of a will by an interested witness does not invalidate the will or any provision of it.
- Notary: You do not need a notary to attest to your signature. But you require a notary if you use a self-proving affidavit as part of your will signing.
- Self-Proving Affidavit: Minnesota allows a self-proving affidavit in which your witnesses attest before a notary that they saw you sign the will (or you acknowledged your signature or someone else’s under your direction). The benefit of a self-proving affidavit is that your witnesses will not have to testify in court, streamlining the legal process in probate.
Can I Disinherit My Spouse in Minnesota?
No. Unless your spouse waives their right to an elective share in a premarital agreement, they may benefit from your estate. An elective share is a part of a decedent’s estate that a surviving spouse may claim if left out of the will.
Can I Disinherit My Children in Minnesota?
Yes. In Minnesota, children do not have a right to inherit from you unless you die intestate or if they are born or adopted after you sign your will. A court may consider children born or adopted after you sign your will an omitted child left out by mistake. They may award your child a share of your estate. If you want to disinherit your child, you should state your intention in your will.
What Estate Planning Documents Should I Have in Minnesota?
A will gives you peace of mind and helps your family after you die. You may consider other estate planning documents that help you and your family during your lifetime.
- Power of Attorney. A power of attorney is a document allowing you to name someone you trust to handle your finances when you cannot due to incapacity or other reason you specify. The person you name is your “attorney in fact,” who has a fiduciary duty to act in your best interest. You decide what powers to grant your attorney in fact and when their authority begins and ends.
- Health Care Directive. A health care directive or living will is a document allowing you to name someone to handle your health care when you are unable and to give specific instructions about what medical care and life-sustaining treatments you want or don’t want.
Fortunately, making a valid will and creating other Minnesota estate planning documents is easy with online estate planning templates.