Intestacy and the Need for a Will

by Dec 15, 2015Elder Law, Estate Planning, Property, Wills

Minnesota’s Intestacy Laws can prevent your assets from being distributed how you would like unless you have a valid will. Proper planning can make the difference between your wishes being carried out and someone else deciding for you.
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Minnesota Intestacy and the need for a legal Will

Although planning for your death is often difficult emotionally, the importance of having an estate plan cannot be understated. First, planning includes the importance of having a Will that addresses what will happen to your property (your “estate”) after you die. If you die without a Will or a legally valid Will, you are considered to have died “intestate.” In such case, your estate would be ordered by the court to be distributed to your heirs under Minnesota’s intestacy laws without regard to your actual personal relationships with such persons.

Distribution of the Estate without a Will

The order of distribution of your estate is generally as follows:

  1. Your surviving spouse
  2. Your surviving children
  3. Your surviving parents
  4. Your surviving brothers and sisters
  5. Your surviving grandparents and aunts and uncles.

If no one exists in these groups, your estate goes to your closest next of kin. Otherwise, your estate goes to the State. In some situations, if a family member did not survive you but left surviving children, grandchildren, and so on, these surviving family members may also be entitled to a portion of your estate. This is called “by right of representation.” Finally, there are also some priority distributions for certain assets, such as your homestead, with the priority generally going to a surviving spouse and children.

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To be considered an heir, a person must outlive you by at least 120 hours. This requirement prevents an inquiry into who died first in what were otherwise simultaneous deaths, for example, in a car accident involving you and another family member. Also, a person in gestation (a baby in the womb) at the time of your death that survives for 120 hours after being born may be treated as an heir of your estate. You can still end up with two probates for the same assets without a Will that provides a survivorship preference.

The intestacy laws do not distinguish between half-blooded and whole-blooded family members. For example, suppose your surviving siblings will receive a portion of your estate. In that case, your half-blooded siblings are treated the same as your whole-blooding siblings. A stepchild is not treated as your child for intestacy purposes. An adopted child would be an heir.

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The Importance of Having a Will for your Estate

The effect of these detailed and inflexible rules of inheritance make clear the importance of having a Will. The order of distribution of your estate is based on the general assumption that the family members closest to you as relatives are the ones who should inherit your estate upon your death. But this is not always the situation. You may have a sibling that you have not spoken to in decades, but this sibling will be treated the same as your closest siblings. Or you may have a friend, neighbor, or charity that you want to inherit part or all of your estate, but this is not possible under the intestacy laws and may only be accomplished through a Will. There also may be a reason to prevent a family member from inheriting from you if such an inheritance affects that family member’s eligibility for government assistance or is at risk of being taken by creditors. You may also wish to plan your estate to try to avoid probate and the costs and time involved with such proceedings.

Wills and Estate Planning in St. Cloud MN

These considerations emphasize the importance of having a Will and planning for what happens to your estate at your death. The Conservatorship and Guardianship attorneys at Jeddeloh Snyder Stommes have experienced estate planning attorneys who can help you plan your estate so that your loved ones receive exactly what you wish instead of the intestacy laws require.

Don't delay, get your will done today!

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