Part 1 of this article explains common terms related to wills and estate planning. Part 2 answers frequently asked questions about wills. Part 3 discusses the role attorneys provide in preparing a will or estate plan.

Part 1: Common Will Terminology

What is a Conditional Will?

A Conditional Will is a will that you create in a situation where you are unsure if something may happen to you. Moreover, a conditional will takes effect only when a specific condition in a will happens.

What is a Joint Will?

A joint will as its name describes is a will that include two people, usually a husband and wife. This type of will is not created often nor is it recommended because of the complexities that can arise from it tying together two people.

What is a Nuncupative Will?

A nuncupative will is a will that deals only with personal property and is recorded orally. It is similar to a deathbed will because it is often used by people who are terminally ill and not able to revise or create a will.

What is a Self-Proving Will?

In most cases, if a will is not contested the court will accept it without needing testimony of witnesses. However, for the convenience of the witnesses sometimes it is beneficial to create a self-proving will because it certifies that the witness and testator signed the will correctly. This takes away the need for the witnesses to potentially half to testify in court.

What is a Statutory Will?

A statutory will is a very simple form of will that allows the testator to fill in blanks and check boxes in order to determine the content of the will. This type of will does not give you much control over the specifics of your will and because of this, in many cases, it is not effective because the testators are not able to customize the will to fit their particular needs.

What is a Video Will?

While written documents are still required for the will making process, it is becoming more popular for those creating wills to supplement the written document with video. This can be done to make the will more personal when it is released to the beneficiaries.

What is a Codicil to a Will?

A codicil is a legal document that gives you the ability to change a specific aspect of your will without changing the entire thing. This gives you the ability to make minor changes without having to start over and create a completely new will.

What is a Deathbed Will?

A deathbed will is created by a person who is facing imminent death. These are often created quickly and add some risk as to whether or not everything will be accurate. Also, they may be frequently contested, based on the argument that the person is not in the proper state of mind to create a will.

What is a Living Will?

Living wills are often used in order to give instructions regarding health care if a person becomes incapacitated. The instructions may include consent to or refusal of any health care, treatment, service, procedure, or placement. It also may designate a proxy to make decisions on your behalf.

What is a Pour-Over Will?

A pour-over will may be necessary for someone who has already created a trust into which all of their assets are going after their death. The pour-over will makes sure that if any of the assets are forgotten, they will become part of the trust as well, after the death of the trustor. Unlike a trust, a pour-over will must go through probate.

What is a Simple Will?

A simple will is, as the title describes, the most basic will that very few, if any, complexities outside the necessities of a will. This type of will gives the testator the ability to distribute the assets of their estate and not much else.

What is a Testamentary Trust Will?

A testamentary trust will is essentially a revocable living trust that instead of existing on its own is written into a will. The trust, like the will, will not go into effect until after the death of the testator. Then, similar to other kinds of trusts a trustee designated by the testator will control the distribution of the assets to the beneficiaries.


Part 2: Minnesota Will FAQ

The following are answers to frequently asked questions about wills in Minnesota.

What Is a Will?

A will is a legal document that allows you to transfer your property at your death.

A will is a simple way to ensure that your money, property and personal belongings will be distributed as you wish after your death. A will also allows you to have full use of your property while you are alive.

Does Everyone Need a Will?

The law does not require that you have a will. However, a will is a useful tool that provides you with the ability to control how your estate will be divided.

If you die without a will, Minnesota’s inheritance laws will control how your estate will be divided. Your property will go to your spouse or closest relatives. If you have a spouse and children, the property will go to them by a set formula. If not, the property will descend in the following order: grandchildren, parents, brothers and sisters, or more distant relatives if there are no closer ones. Click here to view a “Table of Minnesota Heirship.”

You may not need a will if you have made provisions so that your assets will pass without one, for example, by establishing trusts, life insurance policies with named beneficiaries, or joint property interests such as real estate or bank accounts.

A will is necessary if you want to leave property to a friend or a charity, to give certain items to certain people, or to leave someone out who would otherwise inherit from you. You may also wish to appoint a specific person to handle your estate. Thus, often it is best to write a will so your intentions can be met.

What Rules Apply to Wills?

In Minnesota, the following rules apply to wills:

  • You must be at least 18 years old and of sound mind to make a will;
  • The will must be in writing;
  • The will must be signed by you, by another person at your direction and in your presence, or by your conservator pursuant to a court order;
  • The will must be witnessed by at least two people, both of whom must also sign the will; and
  • You must intend for the document to operate as a will.

What Is a Self-Proved Will?

A will is self-proved when you and witnesses acknowledge in affidavits that you signed and executed the will voluntarily, within the presence of at least two witnesses, that you are over 18 years old, not under undue influence, and of sound mind. A will may be made self-proved at the time it is executed or at any time thereafter. You may want to consider this procedure as it helps establish that your will was properly executed, should it be contested in court.

What Is in a Will?

Generally, the following basic elements are included in a will:

  • Your name and place of residence;
  • A description of any assets you wish to give to a specific person;
  • Names of spouse, children, and other beneficiaries, such as charities or friends;
  • Alternative beneficiaries, in the event a beneficiary dies before you do;
  • Establishment of trusts, if desired;
  • Cancellation of debts owed to you, if desired;
  • Name of a trustee for any trusts created;
  • Name of a personal representative to manage the estate;
  • Name of a guardian for minor children;
  • Name of an alternative guardian, in the event your first choice is unable or unwilling to act;
  • Your signature; and
  • Witnesses’ signatures.

Your will should clearly state who will get your property upon your death. You should also indicate, in an itemized and organized manner, how much each person will receive. You should be sure to name a guardian for your minor children and name a personal representative for your will.

Can I Leave My Spouse or My Children Out of My Will?

In Minnesota, if you want to leave your spouse out of your will, it must have language that specifically and expressly excludes your spouse. Otherwise, your spouse may claim up to one half of your estate even if the will does not mention your spouse. The amount of money your spouse would get depends on how long you and your spouse were married. Your spouse has an option of whether or not to take this amount.

You may also disinherit a child in your will. Like a spouse, if you want to disinherit your child, its best to state so specifically and expressly in your will. If a child appears to have been omitted from a will by error or because the child was born after the parent’s death, the child may still be entitled to a portion of the deceased parent’s estate.

What Is a Personal Representative?

A personal representative (also known as an “executor” or “administrator”) is the person who oversees payment of your debts and distribution of your assets according to your will. A personal representative is considered a fiduciary. This means that he or she must observe a high standard of care when dealing with the estate. You should identify a personal representative by name in your will. Most people choose their spouse, an adult child, a relative, a friend, a trust company, or an attorney to fulfill this duty, but anyone can be named personal representative in a will. Since your personal representative will handle your assets, you should always pick someone you trust.

You may also appoint more than one personal representative. When there is more than one personal representative, all representatives must agree on any decision regarding the estate unless the will provides otherwise.

If no personal representative is named in a will, a judge will appoint one for you to oversee the distribution of your assets.

Responsibilities usually undertaken by a personal representative include:

  • Filing your will, an inventory of your assets, and other documents with the court;
  • Paying valid creditors;
  • Paying taxes;
  • Notifying Social Security and other agencies and companies of the death;
  • Canceling credit cards, magazine subscriptions, and similar consumer items; and
  • Distributing assets according to your will.

What Is a Guardian?

In most cases, a surviving parent assumes the role of sole guardian of your minor children. However, if neither spouse survives or if neither is willing and able to act, it is very important to name a guardian in your will. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the potential guardian about what you are asking before naming that person in your will. You can name a couple as co-guardians, but that may not be advisable. It is always possible the guardians may choose to separate at some later date; if so, a custody battle could ensue. If you do not name a guardian to care for your children, a judge will appoint one.

How Do I Prepare a Will?

You should outline your objectives, inventory your assets, estimate your outstanding debts and prepare a list of family members and other beneficiaries. You should then use this information to consider how you want to distribute your assets. Some questions you should ask yourself include the following:

  • Is it important to pass my property to my heirs in the most tax-efficient manner?
  • Should I establish a trust to provide for my spouse or other beneficiaries?
  • How much money will my grandchild need for college?
  • Do I need to provide for a child who has a disability?

Assets that you do not specifically address in your will may fall into a “catch-all” clause in your will. This catch-all provision is often called a “residuary clause” since it generally states, “I give the residue of my estate to…” Without this clause, the items you do not specifically mention will be distributed in accordance with state law. When it comes to actually writing your will, you may find it helpful to contact an attorney. In the Referral Guide section, phone numbers are available for various attorney referral and legal aid services.

How Do I Change or Update a Will?

You may want to update or change your will if:

  • Your marital status changes;
  • A child or grandchild is born;
  • There is a death in the family;
  • You move to a new state;
  • The value and kind of property you own changes substantially;
  • Your personal representative moves away or dies; or
  • Tax laws change.

Wills can be changed either by writing and executing a new one or by adding a “codicil,” which is an amendment to a will. The codicil must be written, signed, and witnessed the same way as the will and should be kept with the original will.

Do not try to change your will by simply crossing out language or writing in new provisions. Crossing out language raises the question of whether you intended to revoke your whole will or just a part of it. Writing new provisions will be ineffective unless the provisions are signed by you and two witnesses.

The only part of your will that can be changed without being rewritten and executed is a separate personal property distribution list. If your will specifically states that you are distributing personal property by a separate document, you may simply write out a statement describing how you want to distribute your personal property. The statement can be written after the will is signed and it can be changed without revising the will itself. If you use such a statement, always be sure to date and sign it, and clarify whether you wish to revoke any prior statements. If an item is disposed of to different persons in different writings, the most recent statement controls the disposition of the property, and all statements may be ineffective if their order cannot be determined.

A will is effective until you change, revoke, or cancel it, so it is a good idea to periodically review your will.

Where Do I Keep a Will?

Your will should be kept in a safe place. The original will should be placed where it can easily be found after your death. Make sure your personal representative and a close friend or relative know where to find it and can access it, particularly if you are considering a safe deposit box.

In Minnesota, the probate court or court administrator’s office will accept wills for safekeeping at no charge or for a nominal fee. You have the right to get your will back at any time. If an attorney prepares your will, he or she may be willing to hold it for safekeeping. If you do this, be sure to tell your family that the attorney has it.


Part 3: The Role of an Attorney in Preparing a Will

The following are answers to frequently asked questions about wills in Minnesota.

How can an estate planning attorney help with a will?

An estate planning attorney can help you establish a will and minimize taxes through proper estate planning. A will serves as instructions to the probate court regarding how an individual wants to have his or her property distributed at death.

Careful tax and legal planning is the most vital step an individual or business can take to protect assets and pass them on as desired. An array of complex legal rules, potential liabilities (including taxes and long-term medical expenses), and even litigation can destroy hard-won financial accomplishments. An estate planning attorney should provide personal attention in preparing wills and advise clients to keep them up to date as circumstances and the laws change.

What general areas does an Attorney Cover?

Legal topics releated to estate planning include:

  • Will
  • Trust
  • Living Will / Health Care Directive
  • Asset Protection
  • Estate Administration
  • Trust Administration
  • Tax Planning
  • Elder Law
  • Guardianship
  • Power of Attorney
  • Probate
  • Asset Protection
  • Medicaid Planning/Medical Eligibility
  • Business Succession

What specific areas can an attorney can help with?

Your Minnesota estate planning attorney can assist you in a broad range of matters including:

  • Crafting asset protection, estate, and business succession plans tailored to each client’s particular financial and legal needs – regardless of the size of the estate
  • Saving income, employment, transfer, and property taxes
  • Developing elder care plans for yourself and other family members
  • Establishing and administering trusts, wills, probate proceedings, and guardianships
  • Handling all aspects of commercial and residential real estate transactions
  • Creating, buying, operating, and selling businesses (including mergers and acquisitions)
  • Financial restructuring (including debt modification and bankruptcy)

In addition, we can assist clients in litigation matters encompassing all these fields.

Contact an attorney in this area