You are not required by law to have a will or a trust. However, if you die without a will, Minnesota law will control how your estate is divided, who will administer your estate, and who will be appointed as guardian of your minor children. State law is not likely to be consistent with your desires in all of these areas.
Your estate will be divided in accordance with Minnesota’s inheritance laws. If you have a spouse and children, the property in your estate will be divided between and among them by a prescribed formula. For example, if you own your house in your own name, your surviving spouse would only received a lifetime right to live in the house with the remainder ownership interest being divided equally among your children, making it difficult for your surviving spouse to sell the house.
The personal representative is the person responsible for administering your estate. Minnesota statutes determine who, among the parties interested in the estate, has priority to be appointed personal representative. If you do not have a will, a judge will name your personal representative.
Similarly, the guardians to care for your minor children would be appointed by a probate judge or referee. The guardian would have the same responsibilities as you presently do as the child’s parents to provide for the personal care of the child and for the child’s estate until the child reaches the age of majority. Although the court will apply the standard of “what is in the best interests of the child” in appointing a guardian, the probate court will not know what family values, environment, religious beliefs, or other factors are important to you in raising your children.
Any share of your estate that is divided for the benefit of your child or grandchild who is a minor will be held for the child’s benefit under the supervision of the court. As a child or grandchild reaches 18 years of age, they will automatically receive the inheritance outright, even if they are not mature enough to manage the funds wisely.
The bottom line: prepare your own will or trust, so that your goals are fulfilled and your family is cared for.
Posted by Gregory W. Deckert
