Do I need a Will?

Maybe. You need a Will to leave specific, tangible items to specific people after your death. You need a Will if you want to leave property to someone who is not your spouse or descendant. If you want to leave someone out (disinherit) who would otherwise inherit your property, you need a Will. A Will is also required to make unequal distributions and to name a guardian for minor children. 

If you die without a Will, it means you have died intestate and the intestacy laws of the state of Minnesota determines how your property is divided and distributed.

Probate Court is a specific court within each county that handles the estate administrations of a decedent, and related cases. The Personal Representative of your estate must report to the judge how the decedent’s funds were used to pay any debts and expenses and how the remaining assets are distributed to the beneficiaries named in the decedent’s Will. 

The Probate Court is also where any contests or disputes would be resolved.  In Minnesota Probate is a tool to transfer assets from the decedent to beneficiaries. While there are methods to avoid probate the advantages and disadvantages to those plans should be discussed with an attorney.

Maybe. A Trust is a fiduciary relationship whereby the Grantor titles assets into the name of his or her trust and permits a third party, the Trustee, to manage and direct the Trust assets according to the Trust terms for the benefit of the specified beneficiaries. There are situations where trusts can be a great planning tool, however, not everyone needs a trust. 

A Power of Attorney is a legal document that allows you, the Principal, to appoint a person as your attorney-in-fact to access and manage your assets. The attorney-in-fact is the title of the person serving under a power of attorney; it does not have to be a lawyer. The actions of the attorney-in-fact are binding on the Principal, so it is important to name someone you trust deeply. 

A durable power of attorney is a power of attorney that continues in the event of the Principal’s incapacity. Unless a power of attorney specifically states that it is a durable or continues in the event of incapacity a power of attorney ceases to be effective if you become incapacitated.

Your attorney-in-fact must be at least 18 years of age and mentally competent. The power of attorney is effective when you sign it and gives your attorney-in-fact access to your finances. One of the jobs of the attorney-in-fact is to maintain accountings or records of all the transactions they handle for you. A family member or friend who has difficulty managing their own assets would not be a good choice to name as your attorney-in-fact.

Yes. As long as you have capacity you can revoke (take back) the powers given at any time.  The revocation must be in writing and delivered to the named attorney-in-fact and any institutions where the attorney-in-fact used the Power of Attorney.

A Health Care Directive is a legal document naming someone, your Health Care Agent, to make medical decisions for you in the event you are unable to communicate your wishes. You can also leave instructions as to what medical treatment you do or do not wish to have administered. This was formerly called a Living Will or a Power of Attorney for Medical Decisions, but Health Care Directive is now the common terminology.

Your Health Care Agent must be at least 18 years old and mentally competent. Your Health Care Agent should be someone who knows you well, will follow your expressed wishes, and someone you trust to act in your best interest. Your doctor, nurse, or other medical provider cannot serve as your Health Care Agent unless they are related to you by blood or marriage.

Your Health Care Agent can make medical decisions for you when you are unable to communicate your medical wishes or when your physician determines you do not have capacity to make decisions for yourself.

A guardianship is a Court ordered appointment of one person (the “Guardian”) to act as the decision maker for another person (the “Ward”) when the Ward cannot make decisions regarding basic personal needs due to incapacity (or not yet having reached majority). 

A conservatorship is a Court ordered appointment of one person to act as the decision maker for another person (the protected person) when the protected person cannot make sound financial decisions due to impairment or incapacity.

An adult who lacks capacity, due to that person’s diagnosed inability to make decisions about medical care, where to live, how to care for themselves. An unconscious or semiconscious person without any signed directives naming an agent or providing guidance about decision making. A child over the age of 18 who lacks capacity to make their own decisions. A minor child whose parents are no longer living, or where a living parent has no parental rights.

A person has assets or property that is being mismanaged, wasted, or at risk. A person has been unduly influenced or financially exploited by another person including an appointed agent. A minor child has inherited a significant sum of money.

*** See Disclaimer. The above provided information is solely educational and cannot be construed as legal advice