Get a will; here's the why

Not everyone needs a will. But everyone should consider having one anyway.

In Minnesota, if you pass away without a will, the law takes over: everything you own will pass to your heirs. If you have children, it goes to them. If you don’t have children, it passes to your parents if they are still around, or to your siblings. No siblings? The law of intestate succession continues down the family tree, so cousins, second cousins and so on inherit. Eventually, if there are no relatives, the state keeps it.

Notice that I never mentioned spouses. Most people think that if you die without a will, your wife or husband inherits everything. But that’s not accurate. At best, your spouse is entitled to a “selection” of assets, and has the right to live in the homestead as long as they want, but it’s the kids who eventually will own it.

But don’t be afraid, spouses. Most of the time, couples own their property together as joint tenants. That means the property automatically becomes the surviving spouse’s property without any probate or court action. For example, most couples share a checking account. When your spouse dies, any balance in that checking account becomes your money, without the need to file anything. Things such as retirement accounts and other assets are often set up to be payable to a beneficiary. In that case, you usually need to send a death certificate or other proof, and those assets become yours.

The house? Typically, both names are on the homestead, and there’s a form that you file showing your spouse is deceased. It’s pretty simple, and the court does not get involved.

Typically, most people have either given away most of their belongings one way or another, and very little is left to probate. There’s a simple solution if there’s no real estate left and just a few bucks in the bank, for example. It’s called an “affidavit for collection” and an heir can simply swear that they are entitled to the assets and promise to distribute it correctly, and fill out the form. It doesn’t work for real estate, and it’s smart to have a lawyer help you do it, but again, no court action is necessary.

So, one way to avoid probate is to plan carefully: if you figure out how to give everything away without needing court action, you don’t need to probate your estate.

Then, why do I suggest everyone have a will? Well, if it turns out that you need a will, you don’t find that out until you are no longer able to make a will, if you catch my drift.

I explain it to people this way: Whenever you get a new bicycle or vehicle, what’s the first thing you should do? Learn how to turn it on? No, the first thing you should learn is how to stop! If you can’t stop it, it’s pretty risky to even try to start it. A will is the same: When you are estate planning, start with the last thing you’ll ever need — a will. Then work backward. If you plan carefully, you’ll never need the will at all.

Estate planning is not really part of my law practice, although I have done it. There are plenty of very good estate planners out there who can help you manage your assets effectively. I’d suggest contacting one of them if you are ready to start estate planning.

Pete Radosevich is the publisher of the Pine Knot News community newspaper and an attorney in Esko who hosts the talk show Harry’s Gang on CAT-7. He can be reached at [email protected].