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Last will and testament document - iStockThis issue varies significantly based upon where you live. In Minnesota, unlike some other jurisdictions, the probate avoidance opportunity doesn’t always rise to the level of necessity. The benefits of avoiding probate include:

  • not incurring the time delay,
  • avoiding the expense of court filing fees or attorney’s fees for opening the probate and administering the matter in the court, and
  • additional privacy offered by not having the decedent’s will filed with the court.

There are, however, expenses associated with creating the correct documents to avoid probate which may mean significant costs and additional efforts for administration during life. Regardless of whether the probate court is involved or not, there is an element of administration after someone dies. The table below is a condensed list of tasks for the personal representative of a probate estate compared to the duties of the trustee (and avoiding probate) after death:

Personal Representative

Trustee

Petition court for appointment as personal representative

Prove succession as successor trustee

Locate and collect assets

Locate and collect assets, although trustee may already have some or all assets

Prepare inventory of assets

Prepare inventory of assets

Manage, invest and administer assets

Manage, invest and administer assets

Sell assets if necessary or desirable

Sell assets if necessary or desirable

Coordinate preparation of final income tax returns of decedent

Coordinate preparation of final income tax returns of decedent

Coordinate preparation of estate income tax returns

Coordinate preparation of trust income tax returns

Coordinate preparation of state and federal estate tax returns

Coordinate preparation of state and federal estate tax returns

Pay all taxes (property, income, estate, gift, etc.)

Pay all taxes (property, income, estate, gift, etc.)

Pay debts and claims, pursue and resolve disputes and litigation

Pay debts and claims, pursue and resolve disputes and litigation

Obtain court approval or determination of any matter if necessary

Obtain court approval or determination of any matter if necessary

Prepare final account for beneficiaries

Prepare annual accounts and final account for beneficiaries

Distribute all assets to persons entitled under the will, or to trustee if required by the will

Distribute all assets to persons entitled under the trust document

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Multiple Gift Boxes - iStockI have noticed that many clients use the words “equal” and “fair” interchangeably in the discussion around leaving assets (especially to children and grandchildren). Unfortunately, when thinking through the ramifications of equal treatment, it often starts to not look as fair to all takers. One example involves the family business where one of the client’s two children works. The client decides to leave equal shares of the family business to both children, yet only one of the two kids “sweated it out” with mom experiencing the ups and downs of the growing business while the other sibling had a steady, salaried office job. In this scenario, passing equal shares to both of them may not feel fair to the child who worked her whole professional career with mom. This element of fairness may be considered when dividing liquid assets, too. Consider the situation where a parent pays for college or makes a down payment for the first house of the oldest child and passes away before the second child goes to college and gets her down payment. Should the assets passing to the two children be in equal amounts or should an equalizing distribution be drafted into the Will to provide for educational expenses or a down payment? There’s no right answer other than what the Testator wants, but it is important to consider such issues carefully to ensure that there are no unintended consequences.

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gavelThis is somewhat correct: I clearly remember reading anomalous cases in law school about concepts like Holographic Wills and whether something as simple as “I leave everything to my wife” is a Will. A gentle reminder: I was reading these stories in a case book, which means these were matters that wound up being litigated. Having a clearly written Will (drafted without ambiguity and following appropriate formalities) helps with the avoidance of legal arguments that wind up in court. Estate litigation can be expensive (emotionally as well as financially) and time consuming as a way to determine who gets what.

You may have read about a recent case from New Jersey where the decedent wrote his own Will on his smart phone. Again, while this does show the ease with which the words can be captured, this case is noteworthy because someone had to opine on it.  What is safest and least likely to produce arguments over your stuff when you die? A precisely drafted Will, duly witnessed and executed.

Further, there are many benefits of working with a team of professionals who can assess your needs and make suggestions, perhaps identifying issues that were not on your radar. For example, many people are unaware of various issues that arise from owning real estate in two states, or the differences between probate and non-probate property. Determining whether a Will or a revocable trust is the best option for you is something that your professionals can help you decide. Coordinating your beneficiary designations with your Will or trust and letting your financial advisors know your plan is all part of a thorough process to make your wishes a reality in an efficient manner. Further, getting advice from a professional can make everything from incapacity planning or charitable giving plan to helping figure out what to do with Fido easier.

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Basics of Minnesota Medical Assistance

by Lauren Fink April 14, 2014 Guest Articles

Over half of the population will require long-term care at some point in their lives.  Paying for long-term care is a topic that many people avoid addressing until the last minute; however, due to the […]

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Estate Planning Myth #3: All I need I can find on legal zoom

by Erika Stein Rosenhagen April 11, 2014 Estate Planning 101

Yes, there are forms out there, and yes, many documents that attorneys draft begin from a template or form. However, consider these two major points for discussion with this myth: first, the law is full […]

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Estate Planning Myth #2: Death Taxes Only Affect the Super Wealthy

by Erika Stein Rosenhagen April 8, 2014 Estate Planning 101

One wonderful thing about the first session of the 113th Congress was its efforts to enact a taxing scheme allowing an exemption from estate taxes for those with less than $5 million (indexed to inflation), […]

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Estate Planning Myth #1: I don’t need a Will – I don’t have kids

by Erika Stein Rosenhagen April 2, 2014 Estate Planning 101

Even if you don’t have a Will, you still do have an estate plan. Without a Will, it’s the state’s version of estate planning that prevails through your state’s intestacy statute. The state’s plan will […]

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Epilawg Series: Top Ten Estate Planning Myths

by Jayne Sykora April 1, 2014 Estate Planning 101

One of our great contributors here at Epilawg is Erika Stein Rosenhagen, an estate planning attorney practicing in Minnesota. Over the next month and a half we will be featuring a series of posts from […]

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Changes to Minnesota’s Estate & Gift Tax

by Jamie Held March 27, 2014 Estate Planning 101

Late last week Governor Dayton signed into law a $440 million tax cut package aimed to put “more money in the pockets of Minnesota families and businesses.” Included in the package are changes meant to […]

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After Hours with Lindsey Manhart

by Jayne Sykora March 25, 2014 After Hours

• Name: Lindsey Manhart • Employer: American Family Insurance • Position: I advise people on their insurance to ensure their policies are tailored to fit their needs. • Location: Minnetonka, MN • Education: B.A. in […]

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The Bitter End

by Maggie Green March 19, 2014 Uncategorized

It’s a shocking and infrequently cited fact that the death rate among the human population in the United States is 100%. It will happen to all of us. When you think of it this way, […]

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