Minnesota Wills – Purpose
A Minnesota Will allows a person to declare how his or her Minnesota probate property is to be distributed at the Will maker’s death.
In the absence of a Minnesota Will, Minnesota probate property is distributed in accordance with Minnesota law.
Sometimes, Minnesota law distributes Minnesota probate property in the manner that the decedent would have wanted anyway, but sometimes it does not.
For example, in the absence of a Minnesota Will, if there is a surviving spouse but no children, the surviving spouse will receive all of the decedent’s Minnesota probate property, which is generally the way most married couples would want their property to be distributed anyway.
However, if there are children of the decedent, the share of the surviving spouse would depend on:
- the size of the estate,
- the date of the decedent’s death, and
- whether or not the decedent’s children were also the children of the surviving spouse.
Minnesota Wills – Non-probate Property
Minnesota non-probate property, such as joint accounts, life insurance, annuities, and retirement plans, is not distributed pursuant to the decedent’s Minnesota Will unless it is expressly payable to the Will maker’s estate:
- Joint accounts are owned by the surviving joint tenant(s), and
- assets which have beneficiary designations are distributed to the beneficiary or beneficiaries designated in the contract.
Minnesota Wills – Probate
When there is a Minnesota Will, probate is the judicial or administrative process of establishing:
- the validity of the Minnesota Will, and
- the persons entitled to receive the decedent’s property pursuant to the Minnesota Will.
In the absence of a Minnesota Will, probate is the judicial or administrative process of obtaining legal determinations:
- that the decedent died without a Will, and
- identifying the heirs who are entitled to receive the decedent’s property pursuant to statutory provisions.
Minnesota Wills – Reducing Probate Costs
A Minnesota Will can facilitate probate of the decedent’s estate at a reduced cost:
- by requesting that the Minnesota probate proceed without court supervision, and
- by waiving the fiduciary performance bond which may otherwise be required of the personal representative.
Minnesota Wills – Bond
A bond is a form of insurance policy issued by a bonding company after payment of a premium to secure the proper administration of an estate.
However, since a personal representative usually must have a good credit rating in order to obtain a bond, a waiver of the Minnesota bonding requirements may be necessary in order to allow some individuals to serve as the personal representative of an estate.
Minnesota Wills – Personal Representative
A Minnesota personal representative is the person or persons who are responsible for working with the lawyer who will actually probate the estate.
The personal representative or representatives can be nominated by the Will maker in the Minnesota Will, and such nominations are usually respected by the probate court.
Minnesota Wills – Estate Taxes
For estates which are sufficiently large, Minnesota Will provisions can be used to reduce federal estate taxes, leaving more assets for the Will beneficiaries.
Minnesota Wills – Trust Protection For Beneficiaries
One useful Minnesota Will drafting technique involves the creation of one or more trusts at the Will Maker’s death.
A trust is a legal arrangement in which property is owned by one person (a trustee) for the benefit of other persons (beneficiaries).
The beneficiaries typically receive a certain amount of the trust assets annually, and the remainder of the trust assets at some future date.
Minnesota Wills – Protection From Creditors
Trusts can effectively protect the trust property from the beneficiaries’ creditors since the property is owned by the trustee until it is distributed to the beneficiaries.
Such protection may be a significant benefit to youthful beneficiaries, particularly given the level of gambling opportunities now available in Minnesota.
Minnesota Wills – Control of Distributions
Trusts also provide the Minnesota Will maker with considerable control regarding the manner of distribution of trust assets, which:
- can be held in trust until the beneficiaries reach a certain age, and
- can be distributed for specified purposes, such as to pay for college or medical expenses.
A trust’s distribution schedule can be tailored to satisfy the Minnesota Will maker’s individual preferences.
Minnesota Wills – Authorized Persons
Any person over the age of 18 with sufficient mental capacity may make a Minnesota Will.
Minnesota Wills – Mental Capacity
The maker of a Minnesota Will must have sufficient testamentary capacity – the mental condition wherein a person understands the nature and extent of his or her property, and is able to:
- identify those family members who could be expected to receive such property upon the person’s death, and
- make an informed decision regarding the recipients of his or her property.
Minnesota Wills – Procedural Requirements
Under Minnesota law, a Will must be:
(1) in writing;
(2) either signed by the person making the Minnesota Will, or signed in such person’s name by another person in the presence of, and at the direction of, the Will maker, and
(3) properly witnessed.
In certain circumstances, a Minnesota Will may also be signed by a person’s conservator pursuant to court supervision.
Minnesota Wills – Number of Witnesses
In order to be valid, a Minnesota Will must be signed by at least two witnesses, each of whom signed the Will within a reasonable time after witnessing either:
- the signing of the Minnesota Will by its maker, or
- the Will maker’s acknowledgment of his or her own signature on the Minnesota Will, or
- the Minnesota Will having been signed by someone else on the Will maker’s behalf.
Minnesota Wills – Identity of Witnesses
Persons who are competent to testify as witnesses at trial may act as witnesses to the signing of a Minnesota Will, i.e., adults of sound mental capacity.
While it is generally advisable to have Minnesota Will witnesses who are not also Will beneficiaries, there is no statutory restriction against Will beneficiaries – even spouses – serving as witnesses to the signing of a Minnesota Will.
Minnesota Wills – Witness Testimony
Witnesses to the signing of a Minnesota Will may be required to testify in court if they are alive, competent, and available at the time that the Will is submitted for probate.
However, in most situations, they do not ever have to appear in court.
Minnesota Wills – Self-proved Affidavit
A Self-proved Affidavit is a supplemental document signed in the presence of a notary public by the Will maker and the witnesses to the Minnesota Will immediately after the Will itself has been signed, which contains substantially the following provisions:
I, …………….., the testator, sign my name to this instrument this …….. day of …………….., and being first duly sworn, do hereby declare to the undersigned authority
- that I sign and execute this instrument as my will and
- that I sign it willingly (or willingly direct another to sign for me),
- that I execute it as my free and voluntary act for the purposes therein expressed, and
- that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
We, …………….., …………….., the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority
that the testator signs and executes this instrument as the testator’s will and
that the testator signs it willingly (or willingly directs another to sign for the testator), and
that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and
that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
Even though a Minnesota Will can be valid without an accompanying Self-proved Affidavit, providing a Self-proved Affidavit to the probate court at the time that the Will is offered for probate may excuse the proponent of the Will from having to:
- locate one or more of the witnesses to the Will, and
- have them sign an affidavit at that time which makes the same declarations as in a Self-proved Affidavit.
Minnesota Wills – Items of Personal Property
A Minnesota Will may incorporate by reference one or more supplemental written lists which serve to dispose of certain items of tangible personal property not specifically identified in the Will.
However, any gifts of:
- coin collections, and
- property used in trade or business,
must be made in the body of the Minnesota Will itself.
Such written lists must:
- be referred to in the Minnesota Will,
- describe the property items and the recipients of such property with reasonable certainty, and
- either be in the handwriting of the Will maker, or signed by him or her.
Such written lists may be:
- prepared either before, or after, the Minnesota Will is signed,
- altered by the person after its preparation, and
- comprised of multiple documents.
However, if the same item of property is given to different persons pursuant to different documents, the most recent document will control the disposition of such property.
Non Minnesota Wills – Signed in Another State
Wills prepared and signed in another state are valid in Minnesota if they satisfy the Will execution and witnessing requirements of either:
- the State of Minnesota,
- the state where the Will was signed, or
- the state where the Will maker permanently resided at the time of his or her death.
Minnesota Wills – Changes
In general, any changes or alterations to a Minnesota Will must be signed and witnessed in the same manner as the original Will.
Therefore, it is not advisable to cross out an original name, term, or provision in a Minnesota Will and replace it with a new name, term, or provision, since the signature and witnessing requirements of a Minnesota Will can create doubt as to the effectiveness of such changes.
It is better to execute a new Minnesota Will any time that changes are desired to be made to an existing Will.
Minnesota Wills – Revocation
A Minnesota Will can be revoked either by written words, or by physical actions.
If a person makes a new Minnesota Will which expressly revokes an earlier Will, the earlier Will is thereafter null and void.
However, if a new Minnesota Will does not expressly revoke an earlier Will, the signing of a new Minnesota Will can still be effective to revoke an earlier Will if the Will maker intended the new Will to replace, rather than supplement, the earlier Will.
- A Will maker is presumed to have intended a new Minnesota Will to replace, rather than supplement, an earlier Will if the new Will completely disposes of the Will maker’s estate.
- A Will maker is presumed to have intended a new Minnesota Will to supplement, rather than replace, an earlier Will if the new Will does not completely dispose of the Will maker’s estate.
Such presumptions are rebuttable only by clear and convincing evidence to the contrary.
If a Will maker performs a physical action with the intent of revoking an earlier Will – such as burning, tearing, canceling, obliterating, or destroying all or part of an earlier Will – the earlier Will is thereafter null and void, whether or not such physical actions visibly altered any of the words printed on the earlier Will.
Minnesota Wills – Joint Wills
Generally, each spouse should have their own Minnesota Will.
However, sometimes two spouses will sign the same Will, intending that such a Will:
- cover all of their combined property, and
- not be subject to revocation upon the death of the first spouse to die.
While such Joint Wills are not invalid per se, the adoption of a joint Will does not necessarily mean that it cannot be revoked by the surviving spouse.
Minnesota Wills – Contracts Not to Revoke a Will
If both spouses want to have Wills which cannot be revoked by the surviving spouse, they may do so by entering into a mutual contractual obligation, providing that:
(i) there is a separate writing signed by each of the spouses evidencing such a contract,
(ii) there is an express reference in each of their Wills to such a contract, and extrinsic evidence proving the terms of such a contract, or
(iii) there are express provisions in the Minnesota Will stating the material provisions of such a contract.
In addition, normal contractual requirements will apply to the creation of any such contract not to revoke a Will.
Minnesota Wills – Penalty Clause
A provision in a Minnesota Will which attempts to penalize an interested person for contesting the legitimacy of either:
- an entire Will, or
- some provision thereof relating to the estate,
is unenforceable if probable cause exists for commencing such a contest.
In other words, if there is a legitimate justification for alleging that a Minnesota Will was signed:
- under duress or undue influence, or
- by a person who did not have the testamentary capacity to do so,
such a penalty clause may be unenforceable.
Minnesota Wills – Storage of Original Will
An original Will should be kept in a fireproof safe, either at home or at a financial institution.
Alternatively, an original Will may be deposited with the court for safekeeping.
During the Will maker’s lifetime, a deposited Will may be released by the court only:
- to the Will maker, or
- to someone authorized in a writing signed by the Will maker to receive the Will.
Upon receiving notice of the Will maker’s death in another county, the court holding the Will may deliver it to the court in such other county.
In the past, the attorney drafting the Will often kept the original Will in a fireproof safe in the attorney’s office.
However, given the current nature of the legal profession, and the mortality of individual lawyers, such a practice is not recommended.
Minnesota Wills – Upon Death
Upon the death of a Will maker and a request by a person having a post-death need for the Minnesota Will to be filed with the probate court, anyone having possession of the Will must deliver it promptly to the appropriate court.
The intentional failure to deliver a Will to the appropriate court may subject the possessor of the Will:
- to liability to any person who sustains a loss as a result of such failure, and
- to a contempt of court citation.
Minnesota Wills – Change in Circumstances
There are generally only two circumstantial changes that will result in the automatic revocation of certain Minnesota Will provisions:
- The murder of the Will maker by one of its beneficiaries; and
- A divorce involving the Will maker.
Minnesota Wills – Murder of a Will Maker
A Will beneficiary who intentionally murders the Will maker is not entitled to any benefits under the Minnesota Will – or to any other statutory property benefits either.
In such a situation, the estate of the Will maker passes as if the murderer had died before the Will maker.
Minnesota Wills – Divorce Involving a Will Maker
With a few limited exceptions, the dissolution or annulment of a marriage revokes:
(1) any gift of property made in a Minnesota Will by a Will maker to the Will maker’s former spouse; and
(2) any nomination in a Will of the Will maker’s former spouse to serve in any fiduciary or representative capacity, such as a personal representative, executor, trustee, conservator, agent, or guardian.
Minnesota Wills – Death of a Will Beneficiary
If a Will beneficiary who is either:
- a grandparent, or
- a lineal descendant of a grandparent,
of the Will maker fails to survive the Will maker, descendants of the deceased Will beneficiary who survive the Will maker by 120 hours will take in place of the deceased Will beneficiary,
unless a Will provision contains survivorship language such as:
- if he or she survives me,
- to my surviving children.
Minnesota Wills – Disposition of Class Gifts
If a class gift in favor of descendants, or issue, does not specify the manner in which the property is to be distributed among such class members, the gift will be distributed among the class members who are living upon the death of a Will maker in such shares as they would receive under Minnesota’s law of intestate succession – as if the designated ancestor had then died intestate owning the property to be transferred to the class.
A person who dies without a Will dies intestate.
A deceased person’s intestate estate passes to the person’s heirs, who may include the person’s surviving spouse, descendants, and other family members.
Intestate Share of the Surviving Spouse
The intestate share of a deceased person’s surviving spouse is equal to the entire intestate estate if:
(i) no descendant of the deceased person survives; or
(ii) all of the deceased person’s surviving descendants are also descendants of the surviving spouse – and there is no other descendant of the surviving spouse who survives the deceased person.
The intestate share of a deceased person’s surviving spouse is equal to the first $225,000, plus one-half of any balance of the intestate estate,
- if all of the deceased person’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the deceased person, or
- if one or more of the deceased person’s surviving descendants are not descendants of the surviving spouse.
Intestate Share of Persons Other Than the Surviving Spouse
To the extent that any part of the intestate estate does not pass to the deceased person’s surviving spouse, or if there is no surviving spouse, the entire intestate estate passes in the following order to the individuals designated below who survive the deceased person:
(1) to the deceased person’s descendants by representation;
(2) if there is no surviving descendant, to the deceased person’s parents equally if both survive, or to the surviving parent if only one survives; and
(3) if there is no surviving descendant or parent, to the descendants of the deceased person’s parents, or either of them, by representation.
Minnesota Wills – By Representation, or Per Stirpes
If a Will provision or statute calls for property to be distributed by representation or per stirpes, the property is divided into as many equal shares as there are:
(i) surviving children of the designated ancestor, and
(ii) deceased children who left surviving descendants.
Each surviving child, if any, is allocated one share.
The share of each deceased child with surviving descendants is divided in the same manner, with a subsequent division repeating at each succeeding generation until the property is fully allocated among surviving descendants.
Minnesota Wills – Per Capita
If a Minnesota Will provision or statute calls for property to be distributed per capita at each generation, the property is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants, and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share.
The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if:
- the surviving descendants who were allocated a share, and
- their surviving descendants had predeceased the distribution date.
Minnesota Wills – Specific Gifts no Longer Owned by the Will Maker
In general, a person entitled to receive a specific gift of property in a Minnesota Will has a right to receive:
- such specifically devised property upon the death of the Will maker, and
- any balance of the purchase price owing from a purchaser to the Will maker at death by reason of the sale of the property.
However, if specifically devised property is sold by a conservator or an agent acting within the authority of a durable power of attorney for an incapacitated person, the specific devisee has the right to a general monetary gift equal to the net sale price only if such incapacity existed for less than one year before death.
Minnesota Wills – Attorney Gary Dahle
Attorney Gary Dahle has drafted Wills for residents of dozens of cities in Minnesota, including the following:
Aitkin, Andover, Anoka, Apple Valley, Arden Hills, Blaine, Brainerd, Brooklyn Center, Brooklyn Park, Columbia Heights, Cambridge, Cedar, Centerville, Coon Rapids, Crosslake, Crystal, Deerwood, Eagan, Edina, Elk River, Forest Lake, Fridley, Glenwood, Ham Lake, Hastings, Hugo, Inver Grove Heights, Isanti, Lakeville, Maplewood, Minneapolis, Mounds View, New Brighton, New Hope, North Branch, North Oaks, Oakdale, Pequot Lakes, Pine City, Plymouth, Remer, Robbinsdale, Rogers, Roseville, Sandstone, Savage, Shoreview, Spring Lake Park, St. Paul, St. Paul Park, Vadnais Heights, White Bear Lake, Woodbury, Wyoming, and Zumbro Falls,
located in the following Minnesota Counties:
Aitkin, Anoka, Chisago, Crow Wing, Dakota, Hennepin, Isanti, Pine, Ramsey, Scott, and Washington.
Do-it-Yourself Minnesota Wills
While fill in the blank Minnesota Will document forms can either be downloaded from the Internet, or otherwise obtained from many sources – including perhaps LegalDoom.com 🙂 – the preparation of such documents is best left to licensed attorneys, who:
- can not only fill in the blanks properly,
- but also provide appropriate counsel regarding the legal effect, and perhaps the tax consequences, of the execution of the Minnesota Will document.
There is much that can go wrong when a Minnesota Will document is executed which is improperly drafted.
Minnesota Wills – Conclusion
Please contact Minnesota Attorney Gary C. Dahle for assistance with the preparation, or probate, of any Minnesota Will.
Copyright 2017 – All Rights Reserved.
No claim to original government works.
Gary C. Dahle, Attorney at Law
2704 County Road 10, Mounds View, MN 55112
Phone: 763-780-8390 Fax: 763-780-1735
Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota Wills involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice.
Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota or North Dakota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.
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Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.
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