Is the will I had drafted in another state OK to use in Minnesota?

/ September 21, 2015

 

Last will and testament document - iStockMinnesota is a pretty amazing state. We have great parks, great educational and business opportunities, great health care, and — let’s face it, — we’re ridiculously good looking.[1] But for all its up-sides, those perks come with a cost. First, Minnesota can be an expensive place. Also, it gets cold.

So it’s no surprise that our snow-bird population will frequently ask whether a will that was drafted in another state can be used in Minnesota, should it be needed. The answer, in short: usually. But that is not necessarily a good thing.

Probate is the court proceeding in which the property of a person who has died is identified and disbursed to heirs and creditors. This process is governed by state — not federal — laws. In Minnesota a will may generally be admitted to probate if the will was valid in the state in which it was drafted. This means that if you had a will drafted and properly executed (signed, witnessed, etc.) in Arizona according to Arizona law, it will generally be considered valid in Minnesota, and will be accepted by the probate court.

This can cause a lot of confusion. For example, Minnesota does not recognize holographic wills. A holographic will is a will that a person has written but which was not properly witnessed or signed according to Minnesota law. There are some states that will allow this type of will to be admitted to probate. A Minnesota court will theoretically allow this type of will if it would have been allowed in the state in which it was written, even though it is not valid under Minnesota law. This can be confusing for family members, attorneys, and court administrators alike. Having a holographic will in this case may be more trouble than it is worth, and you’ll likely want to have an estate plan that is designed around the laws of the state in which you live.

Estate planning concerns go well-beyond the validity of a will, of course. A common misconception about wills is that they somehow skip the probate process. This is absolutely untrue . . . when a probate is needed, the will governs the process. Additional planning is required if skipping probate is a goal, and it should be noted that holding certain assets in other states, such as real estate, may cause there to be a probate proceeding in every state where real estate was owned by the person who has died. This generally means the will must be valid in each of these states if your wishes are to be honored.

Importantly, estate planning involves many laws that are state-specific. This of course includes probate, but also real estate, property, and tax laws. There are many situations where this comes into play, but a particularly noteworthy one is Minnesota’s estate tax. A will drafted in Florida for a Florida resident will likely not take Minnesota’s estate tax into account, making this planning document less-than-ideal if that person were to have a Minnesota probate.

A will drafted in Minnesota by a Minnesota estate planning attorney will be written with Minnesota’s laws and best practices in mind. A one-size-fits-all will plan may not be ideal when it comes time for probate, and may make the process more complicated (and expensive) for surviving family members. Contacting an attorney who specializes in estate planning is the first step in making sure you have a proper Minnesota estate plan.

[1] We put even Derek Zoolander to shame.

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