Wills & Trusts
Included below is a description of some of the planning tools we use to help you achieve your goals. Please contact us with any questions or to learn more.
A Simple Will directs the disposition of real and personal property and nominates a Personal Representative to handle your affairs after your death. Minnesota law requires a Will to be signed and witnessed by two individuals. Having a Will does not avoid probate, but it ensures that your wishes are followed and may simplify the steps required to probate your estate. An important reason for parents of minor children to create a Will is to select Guardians to physically care for the minors in the event of the parents’ death.
Will with TESTAMENTARY Trust
Going beyond the contents of a Simple Will, a Will with Testamentary Trust (also called "Contingent Trust Wills") sets out trust provisions to direct when and how assets will be used after your death, typically for the benefit of minor children, disabled persons or persons who lack the capacity or judgment to handle financial assets. Trustees are appointed to manage the assets for named beneficiaries. A trust for a minor child may direct the use of funds for the care and support of minors, education and medical expenses, and certain ages when the child will directly receive and control the funds.
REVOCABLE LIVING TRUSTS
The major benefit of a Revocable Living Trust over a Will is to avoid probate, but it also provides confidentiality and useful arrangements to manage assets of an incapacitated person. While a Will does not become effective until death, a Revocable Living Trust is established when it is signed. Normally the client appoints him or herself Trustee so total control is retained. If the client dies or becomes incapacitated, a successor Trustee is named to manage and administer the assets without the expense and time required by court involvement. A critical second step is to “fund the trust”—transfer the title or ownership of assets from the client’s personal name to the Trustee of the Trust. Only assets titled in the Trust are covered by its provisions, and failure to properly fund the trust can result in having to probate other assets. Furthermore, there are various types of Revocable Trusts which, when properly drafted, help minimize the taxes owed at death.
Power of Attorney
A Power of Attorney appoints a financial agent (also known as an “attorney-in-fact”) to handle financial, legal and business affairs in the event of incapacity or other situations when the principal needs or wants assistance. A Minnesota Statutory Short Form Power of Attorney is commonly used because it is well recognized by financial institutions and others. Several questions on the form address the scope of the agent’s authority. While a Power of Attorney may be extremely helpful and avoid the requirement of a Court appointed Conservator, care must be used in selecting responsible and trustworthy agents to manage your assets without Court supervision.
Health Care Directive
If a person is incapacitated or otherwise unable to make and communicate their own health care decisions, a Health Care Directive is an essential document. The Directive names the agent(s) appointed to make decisions including whether to perform surgery or other procedures, the selection of health care providers and the location of care. It permits health care providers to share confidential medical information with the agents. The Directive also may contain instructions or guidelines for the agents to follow in making decisions. While the focus is often on end of life decisions, the Directive is also critical in other situations such as a coma or Alzheimer disease.
List of Personal Property
It is very important for some persons to designate who receives specific items of tangible personal property after their death. Minnesota law permits a Will to incorporate a separate written list by reference. The List only needs to be dated and signed, and kept with the Will. It does not require the execution formalities of a Will so it can be revised periodically without incurring legal expense. Selected items such as jewelry, antiques, art and collections (other than coin collection) are commonly listed with a description and name. The remainder of tangible personal property passes under the provisions of the Will.