What is a Will?

The purpose of a Will is to pass assets per your wishes, and to select the person you want to be responsible for distributing your assets.

The purpose of a Will is to pass assets per your wishes, and to select the person you want to be responsible for distributing your assets. If you do not have a Will, the state of your residence will decide to whom your assets pass.  Further, the person responsible for distributing your assets may not be the person you would have chosen.  This can make for more conflict than you would have wished, simply because you did not make your wishes clear.

For parents of minor children, it is especially important to have a Will, because that is where you indicate who would be the guardian/conservator for the children in the event of your death.  This can be the most difficult decision for people to make, and sometimes paralyzes people into inaction.  That is really the most important decision, to make, so we encourage you to look at it squarely and take action. 

Wills DO need to be probated, which is contrary to what many believe.  The probate process is not always to be avoided; in some cases, the extra court supervision may be desired. However, the process is often more time consuming and expensive than people anticipate.

The probate process can be summarized briefly as follows:

  • Court appoints the Personal Representative (PR) nominated in the Will
  • PR must give written notice to creditors and to the State of Minnesota, and must publish notice to creditors in the newspaper
  • PR must gather and inventory assets, and must establish an exact date of death value for all assets
  • PR will sell assets as necessary, pay all bills, taxes, etc. Prepare and file tax returns (1040, 1041, 706 and M706 if necessary)
  • Wait a 4 month creditor period
  • Distribute assets per the terms of the Will
  • Submit and Final Account to the court for approval
  • Petition the court for discharge, and court discharges PR

Wills can create Trusts (we call these Testamentary Trusts)

  • Trusts created in Wills can be of many varieties, and can accomplish many goals. For example, credit shelter trusts, disclaimer trusts, cabin trusts, minor’s trusts, and many more can be created under a Will.
  • The downside of creating a trust in a Will is that the assets still need to pass through probate (which means added expense and the process is a matter of public record) just for the assets to pass into the trust.

For more information on drafting a Will, please contact Shannon Hooley Enright at 651-351-2111 or senright@eckberglammers.com

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