Introduction

Without a Will, Minnesota Law of Intestate Succession governs the distribution of your property.  These rules are inflexible and may not adequately provide for the needs of your family or comply with your wishes.

Personal Representative

The Executor of a Will under Minnesota law is identified as the Personal Representative ("P.R").  This individual is given the fiduciary responsibility to carry out the terms and conditions contained in your Will.  You should name both a PR. and a contingent P.R. should your original P.R. not survive you or become incapacitated. (A husband and wife normally name each other as the primary P.R. in their individual Wills.) Finally, you must have full confidence that the individuals(s) you have selected will be honest and responsible.

Specific Gifts

A Will allows you to give specific items of property to named individuals.  If you wish, your Will can also be drafted to allow you to prepare a written list later which can be used to give certain items of personal property to specific individuals without the necessity of re-signing your Will.  Your Will can be drafted so that if you write more than one list, the most recent written list will govern.

Residuary Estate

Your Residuary Estate is what remains in your Estate after your debts and expenses have been paid and specific gifts have been given to your named beneficiaries.

Guardian for Minor Children

If you have minor children, you should name a person or persons (such as a husband and wife couple) to serve as the guardian(s) of your minor children.  You should also name a contingent guardian(s) to act should the original guardian(s) not survive you or choose not to serve.

Testamentary Trust

You may create a Trust through your Will.  This trust could, for example, provide for the care and education of minor children or provide for the needs of a handicapped adult son or daughter.

Trustee

If you Will has trust provision, you must name a Trustee.  This is an individual or corporate entity who has the fiduciary duty to carry out the terms of your Trust.  You should name a contingent Trustee to act in the event your original Trustee does not survive you or fails to continue to serve.

Drafting and Signing of Will

A valid Will must comply with a relatively complicated series of Minnesota law.  There are also a number of specific laws and rules that govern the signing of a Will.  If the drafting or signing of your Will is improper, your Will may be invalid.  Therefore, you should retain a lawyer to draft your Will and supervise its signing.

Power of Attorney

A Power of Attorney ("P.O.A") allows you (as the "Principal") to appoint another person (the "Attorney- in-Fact") to act on your behalf in financial matters.  A P.O.A. is a legal document and should be drafted by a lawyer.  There are many types of P.O.A's including durable and non-durable P.O.A's.

Durable P.O.A.

A durable P.O.A. allows you to name, in advance of your incapacity or absence, an Attorney-in-Fact who is authorized to sign for you in financial matters, manage your property, and pay your bills.  Durable P.O.A's are particularly appropriate for senior citizens who may wish to name one of their trusted adult children as their Attorney-in-Fact.  Further, a durable P.O.A. is a possible substitute for a revocable living trust in that both can provide for the management of a Principal's financial affairs after he or she becomes incapacitated.

Non-Durable P.O.A

You may wish to name an Attorney-in-Fact should you be temporarily out of town.  A non-durable P.O.A. would allow your Attorney-in-Fact to manage and care for your financial affairs during your absence but would terminate should you become incapacitated.

Termination of P.O.A.

The P.O.A's described in this pamphlet are only effective during the Principal's life and automatically terminate upon the death of either the Principal or Attorney-in-Fact.

Changes to Your Will

You should periodically review your Will to determine if it is still appropriate to your situation and remains your wishes as to the distribution of your estate.  You should consult with legal counsel to change your Will if any of the following occur:

-Change in relationship with a beneficiary (e.g. marriage or divorce)

-Birth or death of a child

-Death or incapacity of a Personal Representative or beneficiary

-Significant changes in the value of your Estate

-Relocating your residence to another state or country

Changes to your P.O.A

Consult with legal counsel should you wish to revoke or modify the terms of your P.O.A.

Consult legal counsel to determine the applicability of the information in this website to your circumstances.  The information contained in this website is not intended to provide legal advice to you and you should not rely on this information other than to obtain a general understanding of the concepts and terms discussed.

Please call Montzka Legal Services at (651) 462-4200 should you have any questions.