Your Last Will and Testament, commonly known as a Will, was the very first Estate Plan where you, rather than the government, control who gets your stuff upon your death. Wills were in use since ancient Rome. The Emperor Augustus only became Caesar after inheriting the name upon Julius Caesar’s death. Julius Caesar adopted him, gave him his name, and most of his fortune. This document is still in use today.
In Minnesota, a great many people rely on their will to handle their affairs. There are generally two types of wills. There is the standard will that is intended to transfer your property to the heir(s) of your choice upon your death. Then there is the Pour Over Will that only has the purpose of taking all of your possessions that are not already in a trust and putting them inside of a trust upon your death.
Wills are only effective upon your death. Modern Estate Planning not only plans for your death, but also has provision for incapacity planning and asset protection. Will must also be probated in most cases to pass on the property that they transfer. Many couples today hope to avoid probate all together. This can be possible in modern Estate Planning, but any Estate Plan almost always has a Will within it. This is normally to gather up any assets that the person died before putting into the Estate Plan.
As previously mentioned, your Will only comes into effect after you have died. Many Estate Plans also allow for provisions to take care of your wealth and assets should you become incapacitated. Incapacity tends to affect most persons at one point in their life or another. Whether it is from dementia, Alzheimer’s, disability due to car wreck or some other tragedy, this unpleasant event causes havoc upon your life and that of your loved ones.
If you have not properly planned for incapacity then you will enter Living Probate. This is where the county or your loved ones take you to Probate Court and have you declared incompetent. The Court will name a Guardian to take care of your non-financial needs and make decisions for you. The Court will also name a Conservator that will take care of all of your assets and money. Each of these Court Appointed Helpers file annual reports with the Court. These reports are public records and the public can become privy to your most private issues.
Often people plan for incapacity with the use of Durable Power of Attorney documents, but the most control and protection is afforded through a Living Trust.
Sometimes a Will also creates a Trust within it. These are called Testamentary Trusts. Often these are used to protect special needs persons, children, or to control how an inheritance is spent. Not every Will creates a trust, but most Testamentary Trusts are created by individuals without a Living Trust. In many cases, a Living Trust would have been a better option.
If your heirs are concerned about their inheritance or your Will then they may contest the Will in Court. Whether they claim that you were incapacitated at the time of the Will signing or that some person put undue pressure and influence upon you, Will contests are rare, upon varied grounds, and difficult to win. Many people put specific clauses in their Will to discourage their heirs from incurring the cost of these often futile lawsuits. A clause can be placed within the Will stating that if an heir contests the Will and loses that lawsuit then they lose most or even all of their inheritance. This encourages only the strongest contests to be brought against the Will.
If you have further questions about Wills or Estate Planning in general, please fill out the form below: