Is a Will Legally Required and What Happens if You Don’t Have One?
Many people mistakenly believe that the purpose of a will is to keep your assets out of probate. That’s not true; any will has to go through the legal probate process for the estate to be settled and for assets to be distributed.
So, what is the purpose of a will, and what happens to your assets if you pass away without one? Keep reading below to discover the answers to those questions and get some information about how you can keep assets out of probate.
Is a Will Legally Required?
No, wills aren’t required by law. However, wills are useful estate planning tools in Woodbury that are cost-effective and fairly easy to create in most cases.
The majority of Minnesota residents can benefit from having a will for the following reasons:
- If you die without a will, your assets are divided according to Minnesota inheritance laws. While Minnesota laws do try to keep family and fairness in mind, they are not created with your individual situation and preferences in mind. Only a will created just for you can do that.
- You can use a will to name an executor for your estate. If you don’t name someone to handle your estate, the probate court will appoint someone. Creating a will ensures that you are able to pick someone you trust. It may even be someone that you have discussed your wishes with at length and who is well prepared to carry them out.
- Without a will or other legal document to facilitate guardianships for your minor children, the choice of who they might live with if you pass away is left to the state. Again, the state tries to consider family and what is best for your children, but no one in this process knows your kids and the people in your life as well as you do. Having a will that names a guardian of your choice can ensure an outcome that’s more in keeping with your wishes.
When Do You Not Need a Will?
There are, however, times you may not need a will. If you don’t have any minor children and have no assets to pass on to loved ones, a will may not be necessary. Just make sure that you truly don’t have any assets.
Some people think you only need a will if you’re wealthy, for instance. If you own a home, have any amount of money set aside, or just have some collectibles you’d like to pass on to an interested party, a will can help.
What Happens With Your Assets Without a Will When You Pass Away?
If you pass away without a will in Minnesota, the court will ensure your assets are divided according to the table of Minnesota heirship.
- Assets are first divided among a surviving spouse and children according to formulas set by law.
- If you don’t have a surviving spouse or surviving children, your assets go to any surviving grandchildren.
- If you don’t have any of those heirs, your property goes to the following in the following order:
- Parents
- Siblings
- Nephews or nieces
- Grandnephews or grandnieces
- Maternal and paternal grandparents
- Maternal and paternal uncles and aunts
- First cousins
- First cousins once removed
- First cousins twice removed
The law does have some contingencies for how assets might be handled if none of the above types of heirs can be found. You might note, however, that the law doesn’t have a lot to say about passing your assets on to friends or charities. If you want a close friend, charity, or someone else not related to you to receive any of your assets when you pass away, you definitely want a will to help control these types of gifts.
Handle Estate Planning Early With Stone Arch Law Office
Assets that are listed in a will don’t automatically pass to the people you name. The will and estate must go through probate first. That means that the executor you name in the will must complete a series of steps, including filing with the probate court, gathering information about all the assets, settling remaining estate debts, and filing final tax returns for the estate. All of this can take time, which means that your assets are held up in probate for weeks, months, or, in very complex or disputed cases, years.
Proactive estate planning can help you keep assets out of the probate process. For example, if you ensure some of your assets are in payable-on-death accounts and name a beneficiary for those accounts, the assets can transfer to the beneficiary without any will or probate process.
Another way to avoid probate is by putting assets in a revocable trust. When you put your assets in a revocable trust, you no longer own them — they are owned by the trust, and you are in charge of the trust. Because of this, they don’t go through the same process to pass to beneficiaries. Instead, the assets are used for the benefit of those you name in the trust or pass on to heirs you specify following the provisions of the trust.
There are many legal ways you can help ensure your assets and legacy are handled according to your wishes when you pass away. To find out what options might work best for you, schedule a call with Stone Arch Law Office today. Make an appointment with our team to learn about your options and begin protective steps to estate planning.
