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Ask an Alum Attorney

Ask a Johnnie Estate Planning Professional

August, 2021
Featuring Geordie Griffiths '93 of George Byron Griffiths Law, PLLC in Minneapolis

Do I need a will? What does it accomplish for me and my family/heirs?

Everyone has a Will, whether they realize it or not. Every state has laws of "intestacy" which dictate how a person's Estate will be distributed upon their death. The scheme provided by law may mimic what a person would want to have happen to their assets; but in many cases, it may not. In order to ensure that your Estate will be divided in the way you intend, then you must execute a valid Will. However, having a Will is only one part of the equation. While the Will dictates what will happen to a person's assets after they die, it's also important to execute two important documents that operate during one's life. A Power of Attorney document gives the legal authority to someone else to make your financial and legal decisions on your behalf, especially if you become incapacitated or incompetent. It's important that the person named be trustworthy and also have good attention to detail. You may name one or more persons to act on your behalf, and they may be named to act independently or to act jointly. A Health Care Directive gives the legal authority to someone else to make your medical decisions, only if you cannot communicate your wishes to a medical provider. This document also allows you to indicate if you wish to be an organ donor and if you prefer to be buried or cremated after death. A comprehensive Estate Plan will include a Will, perhaps a Trust, a Power of Attorney, a Health Care Directive, and a Digital Asset Authorization.

What is probate? Is it important that I try to avoid it?

Probate is the judicial process whereby a Will is "proved" in a court of law and accepted as a valid public document that is the true last Will of the deceased, or whereby the Estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal Will. When there are minor beneficiaries to a Will, or when beneficiaries are arguing, Probate can be a beneficial process because it produces orders from a court that are binding on all parties. However, Probate can take time and money, and if beneficiaries are arguing, the more time and money it will take. Some of my clients wish to avoid Probate completely. One of the main reasons to avoid Probate is because it is a public process, meaning that all documents -- including one's Will -- become part of the public record. Some clients wish to maintain privacy for who will benefit from their Estate, and to accomplish that, they will have a "pour-over" Will which devises everything to a Revocable Trust. Then the Trust document, which is private, dictates how the Estate will be distributed. Another reason why it may be important to avoid Probate is when a person owns real estate in more than one state. If a person has a homestead in Minnesota, but also has a condo in Florida, then that person's estate could potentially be subject to Probate in both states upon their death. Deeding one's property, or properties, into a Revocable Trust is an effective way of avoiding Probate in the state(s) where real estate is owned.

*If you're an estate planning attorney or advisor who'd like to participate in the series, please contact Jim Kuhn at (320) 363-2116 or jkuhn@csbsju.edu

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