A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Minnesota wills permit the testator, the person writing the will, to provide for a spouse, children, or other loved ones after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Minnesota living will, or health care directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Minnesota last will and testament also allows the testator to make a charitable gift, create a trust for any person, or name a legal guardian for minor children.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
Minnesota offers several types of probate depending on the value of the estate as well as other factors, including whether the will is contested, the types of assets involved, and whether formal court approval is desired. A simplified procedure involving filing an affidavit is available for estates worth $50,000 or less.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Minnesota in the absence of a will, a surviving spouse generally inherits the entire estate. The situation changes slightly if the decedent also has children from another relationship, in which case the spouse inherits the first $150,000 of intestate property plus half the balance; the descendants inherit the rest.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions include the following:
- Property owned in joint tenancy with right of survivorship
- Life insurance policy and retirement account proceeds
- Elective share of surviving spouse
Form a Last Will in Minnesota
The basic requirements for a Minnesota last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction. A conservator may also sign the will pursuant to a court order.
- Witnesses: A Minnesota will must be signed by at least two individuals who have witnessed either the signing of the will or the testator’s acknowledgement of the signature or the will.
- Writing: A Minnesota will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Changing a Minnesota Last Will and Testament
A Minnesota will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Minnesota Last Will and Testament
The revocation of a Minnesota will can be accomplished by executing a subsequent will or by “burning, tearing, cancelling, obliterating, or destroying ” the document or any part of it, done by either the testator with the intent to revoke it or by someone else at his direction in his conscious presence.
The dissolution or annulment of the testator’s marriage after a will’s execution revokes certain provisions relating to the ex-spouse.
When you are ready to make a will of your own, LegalZoom can help. We can help you start a last will online in three easy steps.