FAQs: Wills and Probate
What is covered by a last will and testament?
What happens if I die without a will?
What happens if I become incapacitated? What happens to my minor children if I die without nominating a guardian?
Will my assets automatically transfer to those persons named in my will?
Is it true that probate proceedings are public and expensive and should be avoided?
Q: What is covered by a last will and testament?
A: Your will directs how you want your estate to be distributed upon your death. You appoint a personal representative who will collect your assets, pay any outstanding debts, and distribute the remaining assets pursuant to your directions. You may also name the person or persons you would like to have guardianship over your minor children in the event of the death of both you and your spouse.
Q: What happens if I die without a will?
A: If you die intestate, or without a will, Minnesota’s intestate succession law defines how your assets will be divided and distributed. Generally, your next of kin will receive the balance of your estate. Next of kin may be your children, grandchildren, parents, or brothers and sisters. If no “next of kin” exists, your remaining funds may go to the State, but this is a very rare circumstance.
Q: What happens if I become incapacitated?
A: If you were to become mentally or physically incapacitated, the Court would appoint a guardian or conservator to handle your affairs. To avoid having to obtain a court-appointed guardian or conservator, you can name a durable power of attorney who can act for you.
To avoid a question as to your wishes concerning medical care, it is a good idea to prepare a Health Care Declaration or Directive (sometimes called a “living will”). This document outlines your wishes in the event you are unable to communicate, such as in a vegetative state. You may name a proxy on this document who can speak for you and carry out your wishes.
Q: What happens to my minor children if I die without nominating a guardian?
A: If both you and your spouse die leaving minor children, the court will appoint the guardian and decide who it should be.
Q: Will my assets automatically transfer to those persons named in my will?
A: Not necessarily. Depending upon the size and contents of your estate, it might be necessary to “probate” your will. Probate is the judicial process by which your will is introduced in court and your nominated personal representative is appointed and confirmed by the court. This will authorize your representative to collect your assets, pay your outstanding expenses, and distribute your remaining funds.
Q: Is it true that probate proceedings are public and expensive and should be avoided?
A: Probating a will in the State of Minnesota is public and anyone can review it. The cost of probating a will varies depending on the size and character of your estate and the nature of any disputes that may arise. Generally, probate costs do not exceed three percent of your total assets.
In some cases, with careful advance planning probate is either partially or completely avoidable. Our attorneys can discuss all of the options available to you and help you implement the plan you decide is best for you and your family.