With all the information out there regarding wills, trusts, estate planning, and probate, how can you figure out what is right for you and your family? Here is a quick way to get you started with analyzing whether you need a will or trust in Minnesota.

You want to avoid probate.

Probate has a bad reputation even though probate is designed to make sure that the rightful heirs or beneficiaries inherit a decedent’s property. The reason many people want to avoid probate in Minnesota is that probate is time consuming, lengthy, expensive, and public.

How Long Does Probate Last in Minnesota?

While every case is different, probate generally lasts between 9 – 15 months in Minnesota. The reason it takes so long is that there is a four (4) month creditor claims period for creditors to file their claims against the estate. There is also a 2 week notice period where you have to publish notice of the probate in a local newspaper. Right there alone, you have 4 and a half months of waiting. Having said that, if the attorney you are working with is diligent, and you have a relatively simple estate, you may be able to complete a probate in less time than described above.

Is Probate Time Consuming?

Yes. If you are a Personal Representative (Executor), you will likely spend numerous hours digging through paperwork, signing documents, and communicating with both your attorney and the beneficiaries about what is going on with the administration of the estate. Being a Personal Representative in Minnesota is a thankless job, but someone has to do it.

How Much Does Probate Cost in Minnesota?

I tell clients to expect that probate will likely cost somewhere between $6,000 and $12,000. I have done probates for less than $6,000, but not very often. If there are any complexities that arise, if beneficiaries can’t agree on things, or if there are creditors of the estate, these costs can increase quickly.

Probate is Public

Probate is a public court proceeding. This means that your neighbor, your co-worker, or anyone else who is interested can go down to the courthouse to see what assets you owned when you died and who is receiving them now that you are gone. Some people have deep concerns over this, others don’t care. If you do care whether your nosy neighbor knows about your assets, then you may wish to avoid probate.

If you want to avoid probate in Minnesota, a Revocable Trust is one of the best options to do so. There are other options to avoid probate in Minnesota, including using beneficiary designations for your retirement accounts and life insurance and Transfer on Death Deeds for your real estate. You may often use a payable-on-death designation on your bank accounts to avoid probate. Using those options may avoid probate but if you have beneficiaries who are minors, who have special needs, who are irresponsible, or have other special circumstances, then using the above options are generally not a great idea.

You want to keep assets from transferring to your child’s spouse (the son-in-law/daughter-in-law) and ensure that they transfer to your grandchildren.

If you are concerned that your assets will transfer to your child’s spouse if he or she passes, then a revocable trust is a good solution. Making sure that your beneficiaries receive their inheritance in trust rather than outright will protect their inheritance from divorce, bankruptcy, and creditors if structured properly.

You can accomplish this type of asset protection for your children through your Will, but if you try and accomplish this through your Will, your family MUST go through probate. Remember: Your Will is simply a letter to the probate court with instructions on who gets your stuff. A Will does not avoid probate. Because of this, a revocable trust is a much better option and will save your family thousands, and possibly tens of thousands of dollars by avoiding probate.

You have a child who has special needs.

If you have a child who has special needs who is receiving state assistance and they inherit assets from you upon your passing, that child will likely be kicked off of state assistance. That child will then have to spend all of the money they received from you on their own care. Once they have spent all of that money, they will then have to re-apply for state assistance and they may not re-qualify at that point.

If you have a special needs child, there are several options to consider. One is setting up a Supplemental Needs Trust separate from your entire estate plan now while you are alive and well. The other option is to build in a “Stand-By” Supplemental Needs Trust into your own revocable trust to ensure that your child’s inheritance is held in the trust and used to supplement his or her needs rather than replace the government benefits he or she is receiving. Structured properly, this can prevent the child from losing his or her state assistance. Having a revocable trust is the best way to implement the “stand-by” supplemental needs trust strategy.

Your beneficiaries are likely to fight over what you leave them.

If you have a family who fights over everything, avoiding probate may save tens or even hundreds of thousands of dollars on a messy family squabble. Remember, probate is a court process. As such, the Court provides opportunities to family members, creditors, or other interested parties to have their voice heard. If a family member disagrees with how things are to be distributed, or if a family member disagrees on how an asset should be valued, it is fairly simple for them to file an objection with the probate court and have their “motion” or “petition” heard.

Conversely, if you have a revocable trust with a competent trustee, it is far more difficult for a beneficiary to dispute the terms of your trust. The terms of your trust are private and so the details of the entire trust may be a bit murkier for the beneficiary. You may have chosen to include a no-contest clause in the trust which would be a further disincentive to a beneficiary to challenge your trust. Then, after all of that, if the beneficiary still wishes to challenge your trust, they will have to hire an attorney and start a case in court. Contrasted with simply filing an objection with the Court in a probate, the hurdles are much greater for a beneficiary when challenging a trust than when challenging a Will in probate.

You have unique assets (e.g. a family business, a vacation property or lake home, a family farm).

Do you have a family business, vacation property in another state, or a family cabin that your children grew up using every summer? These are just a few of the assets that add complexity to your estate. If you die with real estate owned in two states you will likely need probate in two states. If you have a family business, who will manage the business when you die? If you own a family cabin and one child uses it all the time and the other doesn’t, how is that asset going to be distributed or maintained after you pass away?

Now consider whether you want a judge to answer those questions for you. By having only a Will and allowing those assets to go through probate, a judge may decide what to do with that asset if your Will isn’t air tight or if the beneficiaries don’t agree with the interpretation of the Will’s language. It is typically better to have these assets held in a revocable trust where you have spelled out your exact wishes with regard to the asset.

Conclusion

Many people believe that there is a certain asset level that you must have in order to have a revocable trust. This is not necessarily true (although, spending several thousand dollars on a trust when you have $20,000 to pass to your heirs, might not make the most sense). The key really to determining whether you should use a Revocable Trust instead of a Will is to determine what your estate planning objectives are. If your objective is to avoid probate, provide asset protection for your children’s inheritance, and to avoid guardianship and conservatorship while you are living, then a trust is likely a good option for you. If you are hoping to ensure that your son-in-law or daughter-in-law doesn’t receive any of your money, then a trust is typically right for you.

If you want to keep things as simple as possible, you don’t necessarily care about probate, and you are not concerned about protecting an inheritance for your children (e.g. you are leaving $100,000 to your multi-millionaire surgeon daughter), then a Will may be right for you.

While this article is intended to get you thinking about how to decide between a Will or a Trust, there is really no substitute for sitting down with an experienced Minnesota estate planning attorney to discuss the unique circumstances of your case. There are many options out there and an estate planning attorney can present them to you in an educational and informative manner, allowing you to make the decision on what is best for your family.

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Zach Wiegand is a Burnsville estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that also handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie and the South Metro. The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County. Zach was named a Minnesota Super Lawyer – Rising Star for both 2017 & 2018 and he is a member of WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at zach@goldleafestateplanning.com or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337.

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