If you have a Will (this is called "testate"), you get to direct how your property will be distributed on your death, who will be the personal representative of your estate (this person used to be called the "executor") and who is your choice to be the guardian of your minor children. You will be able to include gifts to a friend or significant other, your alma mater or your favorite charity.
The personal representative is the person will assume control of your property on your death, make sure your valid debts are paid and that your remaining property (the "residue) is distributed to the persons who are entitled to receive it. This is called "administering" the estate.
Your Will has no authority until your death. Therefore, it is not an appropriate document in which to give directions about your health care.
A Will can be revoked or changed, but you cannot make handwritten changes to the document after it has been signed. If you want to make changes, you will need to either revise and resign the entire document or do a "codicil." A "codicil" is like an addendum. It is read together with the original Will to understand what the entire document, as modified, says.
If you die without a Will (this is called "intestate"), the State of Minnesota (through our court system according to what our Statutes (our written laws) provide) will decide who will receive your property and in what proportions. Without a Will, you will not be able to leave anything to your significant other, your alma mater or a charity. The State will also decide who will have priority for appointment as the personal representative. The Statues provide for distribution of your property in a variety of ways, depending on the circumstances.
If you are married. If you are married at the time of your death and all of your children are children of both you and your surviving spouse, your spouse will receive all of your property, except for real estate. Your spouse will only be entitled to a life estate in your real estate and your children will receive the remainder interest. Your spouse will also be the person who has priority for appointment as the personal representative.
If you are married and have children who are not also children of your surviving spouse, the share of your property your spouse will receive will depend on how long the two of you have been married. Your spouse, however, will be the person who is entitled to be appointed as the personal representative.
If you are not married. If you are not married at the time of your death, your heirs-at-law will receive your property. Your "heirs-at-law" are your close relatives, your children, your parents, your siblings, your nieces and nephews, etc., in varying degrees of priority. These people will also have varying degrees of priority for appointment as the personal representative. Sometimes more than one person has equal priority and there is a disagreement over who will be appointed.
To answer the question "do I need a Will?": Not everyone absolutely "needs" a Will. It is always a good idea, however. Our experienced estate planning attorneys will assess your situation and make recommendations regarding whether or not you should have a Will or other estate planning documents. If you want to avoid probate, there are methods available other than a Will which can be used to accomplish your desires, but a Will is almost always recommended as a companion document to your other estate planning documents.
Contact our office at 76.425.6330 to schedule a free ½ hour consultation with one of our will and estate planning attorneys.
DISCLAIMER: This site and the information contained in this site is intended for general informational purposes only, is not intended to be legal advice with respect to your individual situation and should not be construed as legal advice.
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