By Jason DeRusha

The estate planning community has been all abuzz about our Good Question on “What happens if you don’t have a will?” that re-aired on Monday night [link]. I’m pretty sure these lawyers are excited that the news media is talking about the issue of wills, since only about one in eight Minnesotans have one.

At least I think they’re excited, when lawyers send e-mails about news stories, they tend to be several pages long. (I kid, lawyers! Don’t sue me.)

Many of them wanted to add some detail that would have been hard to get across in a two-minute story. So with their help, we’ve put together a few more bullet points to help you decide whether or not you need a will, and what happens if you don’t have one.

Everyone has a will: either written by their lawyer or by state law

If you don’t have your own will, there are procedures set up as to how your estate gets divided. Things get complicated pretty quickly, considering how complicated our families are today. That’s why attorney Megan Kraby recommends at least checking with a lawyer to see what your situation requires.

“As an estate planner, I want people to know that not everyone’s situation is the same and that what worked for Harry down the street might be disastrous for you from a planning and tax perspective,” wrote Kraby.

In general, if you don’t have a will, in Minnesota this is what happens: If you have a “traditional” family, a spouse and all the kids belong to you both, then the spouse gets everything. If you have a blended family: your spouse gets the first $150,000 and then half of the balance, the rest gets sorted out in court. (Source: Cooper Law Firm) Obviously if you have children from another marriage, out-of-wedlock, step-children, etc., things get complicated, and if you don’t have a will, you’re stuck with the formulas set up by the state.

The truth about writing your will on a napkin at a bar

I thought it was clear in my story that the advisable path to estate planning success was to see a lawyer. In fact, you saw my will, written by my lawyer, in fancy legal writing in the story. And Norm Bjornnes, the attorney, was clear that the bar napkin will would have to be witnessed by “a couple of disinterested third-parties.” Also, Kraby points out, “keep in mind that both the person signing the will and the witnesses cannot be under the influence of alcohol.”

Let me reinforce the concept here: don’t write your will on a bar napkin. But if you do, and you get two witnesses, it might hold up in court. Might.

The truth about online wills

We didn’t spend a lot of time talking about online wills in the story. There are many different types of online wills of varying levels of quality.

“It is frustrating once you witness the mess that can be made from do-it-yourself estate planning and it’s not the one who made that choice who suffers – it’s the heirs who didn’t have a choice,” said Kraby.

Another lawyer friend of mine told me that you’re often better off with no will than with a garbage online will.

Kraby echoes that point: “The important distinction is that doing wills yourself can cause much more harm than good and can likely cost your heirs at least 2-3 times as much as just going to an attorney in the first place.”

Children inherit at age 18

We stated that you may want a will in order to make sure that your kids don’t inherit all of your estate at age 21. (If my wife and I die together, my kids get a chunk of my money at 21, another chunk at 25 and another chunk at 30.) Kraby points out that “The age of majority in Minnesota is 18. Children inherit at 18.” If you want your kids to not inherit your estate until they are 21, you need a will.

Jason DeRusha

Comments (5)
  1. Reality sucks says:

    Oh these lawyers. Any will is better than no will. It’s about kids and assets. Grab a free on-line will. Intent will be proven just by notarizing the thing at your bank and handing it to someone not in the immediate family (sibling etc.). You don’t need a lawyer unless your assets are complicated (you own a business) or have more than a million. While you’re at it, grab a free online revocable trust. Follow the directions on how to fund that trust with your accounts and real estate. Just requires rewording some of your accounts and notification to financial/retirement account entities. And lastly, while you’re doing that, print a free power of attorney page for when that time comes and a health care directive. FREE, all of it. Got a problem with that, lawyers?? Ha!

  2. James says:

    I’m sure lawyers LOVE ignorant people like you (Reality sucks comment above). Because you have no clue what you are doing, and just enough understanding of the law to be dangerous, you will make massive mistakes in your free on-line estate plan and guess what? To sort it out, your heirs will have to pay a lawyer many-many times the money a well drafted will would have cost you. To make matters worse, after wasting thousands of dollars needlessly on legal fees, your estate still will not go where you intended or you will waste millions in medical fees laying in a coma while the courts argue your fate. Intent is not enough. But, keep on giving legal advice without a license or knowing what you are talking about. All you are doing is helping lawyers get even bigger fees! I;m sure the legal community thanks you.

    1. Reality sucks says:

      YOU are a joke Mr. James.

  3. James says:

    When you are losing the argument on the facts and have to devolve to name calling, the discussion is over. Thanks for making my point for me. 🙂