If you don’t have a will or an estate plan in place, the first thing you should know is that you’re not alone. According to a 2017 survey conducted by Caring.com, only 40 percent of American adults have a will or an estate plan.
Take Prince, for example. Most people were shocked to learn that someone who had so much did not have an estate plan. And more than three years later, the Prince controversy has still not been settled. In the first five months of 2019 alone, nearly 400 public documents have been filed and posted online by the Carver County Probate Court.
Prince, of course, was an outlier in the sense that very few people on the planet have that kind of wealth or such complicated assets. But he was most definitely not an outlier in the sense that he really, really could have done his loved ones a solid by creating an estate plan when he still had the time.
According to me, discomfort is the number one thing that keeps people from getting estate planning off their to-do lists. How so? Well, creating an effective estate plan requires some soul-searching about questions, issues, and possibilities that aren’t very pleasant. “Who should take care of our children if both of us die at the same time?” “What kind of health care would I want if an accident or illness left me incapable of making decisions for myself?” “Which people in my life would I trust to serve as a personal representative or trustee after my death?” Questions like these take most of us out of our comfort zones. And so we avoid them, or we let ourselves be distracted by other things, or we simply rationalize the delay.
One of the most common rationalizations is the idea that we don’t have “enough” to really be able to benefit from estate planning…that it’s really only something we need to worry about if we’re wealthy. The truth is this: nearly everyone has something to gain from thoughtful end-of-life, long-term care, or incapacity planning. With a durable power of attorney and an advance health care directive in place, for example, you can spare your loved ones a huge amount of trouble and heartache even if you have little to pass on to beneficiaries.
Of course, the other big rationalization is the idea that we have time…that we can still get it done next month or next year. This one is harder to get past because it’s true until it isn’t. And if this is where you’re at, there’s no shame in it. A lot of people have spent a lot of time here. Consider it part of a larger process rather than something to feel bad about.
Once you have an estate plan, you can rest easy...for a while. It's important to review your estate plan periodically, especially if you have experienced some major life changes.
If you die without a will, whatever happens to your property will be governed by the intestate succession laws enumerated under Minnesota Statutes Chapter 524.2, and by certain other provisions of the state’s Uniform Probate Code. In real terms this means that once creditors and taxes have been paid, your remaining property will be distributed to your legal heirs in a specific order until nothing is left. In some cases, this distribution might look very similar to what you would have done anyway. But it can also have disastrous unintended consequences, particularly for unmarried partners, members of the LGBTQ+ community, and blended families.
What happens with your minor children? In essence, a judge will have to choose who cares for your children. Here again, the judge's decision might be the exact same choice you’d have made or something close to that, or it might not. A close relative (in the legal sense, not the emotional one), like a parent or sibling of the deceased, is often chosen. For some families, that would be a great choice; for others, a disastrous one. It is far better to plan ahead for the guardian you would want.
For more information or answers to specific questions, call or contact us at Mundahl Law, PLLC. Our offices are located in the City of Maple Grove and we help clients throughout Hennepin County, its surrounding areas, and all along the I-94 corridor heading north.