Last week I covered the definition of “probate.” Probate is simply the process in which the court oversees the distribution of your assets as directed by your will (if you have one) and handles claims against assets. This week I will explain how legal wills are “tested” by probate court and how to prevent having your estate tied up in legal Hell indefinitely. The goal of all estate planning is to get our family the protections they deserve, not have them sucked into long, drawn out legal battles.
Of course, in order for the probate court to test your will, you actually need to execute one. As discussed in a prior post, the process for creating a valid Minnesota will is not difficult. The will needs to be in writing, signed by you in front of two witnesses and notarized. You should also execute a self-proving affidavit, which prevents anyone from challenging the validity of your signature on the will.
Anyone can create a legal will, but having an estate planning lawyer work with you to create your will is especially important for unique families. “Out of the box” will forms are not made to address unmarried couples, stepchildren, pre-adoption children, second marriages or any other situation outside the narrow vision of the state legislature’s definition of family.
In order to avoid challenges during the probate process, a will must be clear, specific, and valid. There must be no doubt about how you want to distribute your assets. A lawyer can make sure that the probate court has no cause for doubt or question with regard to your wishes.
Keep in mind that even if you don’t execute a will, the probate court will still determine how to distribute your assets. But, instead of following written instructions set forth by you in a will, the court will follow the written instructions set forth by the Minnesota legislature. For most non-traditional families, there is a slim chance that the Minnesota legislature “got it right” in determining where you want your assets to end up. Working with a lawyer will keep these decisions in your hands – not the government’s.
Part III of this series will explain what exactly happens when a will is filed.