You know you should do it. You have kids or you own property, so you should write a will. It’s not a legal requirement – you don’t have to do so if you don’t want to – but it’s an important consideration if you want a voice in who gets the property after you die that you’ve worked so hard to acquire. The exact rules for writing a will can vary somewhat by state.
Rules for Writing a Minnesota Will
You must be at least 18 years old to create a valid last will and testament in Minnesota, and you must be of sound mind. Your will has to be in writing, even if it’s just in your handwriting – you can’t orally express your wishes to someone else and expect a court to uphold them.
You must sign the will in the presence of two witnesses, and they must sign it as well within a “reasonable” period of time that's not specifically defined by statute. If you’re physically unable to sign your will, Minnesota law allows that someone else can sign for you, as long as they do so in your presence.
And yes, you can write your own legal will. You don’t necessarily have to pay an attorney to do it for you, though it is recommended. You can use a Minnesota will form or draft one of your own – but if you make any mistakes, it can invalidate the entire will. The court won’t honor any of its terms. Professional advice is strongly recommended if you have children from a previous marriage as things can be very tricky to balance if you have remarried.
Read More: Wills in Minnesota
You Can Try to Disown Your Spouse
You can attempt to write your spouse out of your will if you don’t want him to receive a dime of your largesse, but it might not work. You should state clearly in your will that you’re intentionally not including any bequests to him, but he doesn’t have to accept its terms. He can elect to take up to half your estate anyway.
Exactly how much he’ll get depends on how long you were married. He’ll receive 50 percent if you were married for 15 years or longer, but just 3 percent if you were married for a year or less. He’ll receive this “augmented estate” unless he expressly states in writing that he doesn’t want it. In that case, the terms of your will would stand.
Self-Proving Your Will
A Minnesota will doesn’t have to be notarized, but you have the option of “self-proving” it to help ensure that it’s validated without a fuss at the time of your death. This involves creating a separate document – a statement by you and your two witnesses attesting that you signed your will voluntarily and that you meet the requirements of age and sound mind. This statement does have to be notarized.
What to Include in Your Will
Be sure to include all vital information if you write your own will: your full name, your address and the names of all your beneficiaries. Describe each asset you’re specifically leaving to any individuals and name the individual you want to receive each piece of property. You can also leave the value of your estate to beneficiaries in percentages, instead of, or in addition to, leaving bequests to certain people.
You’ll want to name a personal representative, someone to guide your estate through the probate process, and also a legal guardian for your minor children, if you have any. You might want to include alternates in case the first person you name won’t or can’t take on the responsibility. Otherwise, the court will appoint someone to take on these roles.
What Happens if You Don’t Have a Will?
If you don't leave a will, your property will go to your spouse and children by default according to Minnesota law. No one else will receive anything. If you don’t leave a surviving spouse or children, your grandchildren and parents are next in line to receive your assets. This list then begins branching out to more distant relatives.
The worst-case scenario is that you’re not survived by anyone. In this event, if you die without a will, everything you own would go to the state of Minnesota.
- If possible, have the two witnesses be people legally defined as disinterested in the will. Disinterested means they do not gain from the death of the testator or testatrix. However, having an interested party as a witness will not invalidate the will in Minnesota. It could, however, cause the execution of the will to take more time.
- Although notarization is recommended, it is not required. Non-notarized wills can take longer to get through probate court.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.