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2013-11-01 / Guest Columnists

Senior Legal Line Q. and A.

What do I need to know about making a will?

DEAR SENIOR LEGAL LINE:

I want to have a Will. Can I handwrite one or does it have to be typed? Who has to witness it?

Signed,

Loren

DEAR LOREN:

In Minnesota, there are not very many requirements to make a valid Will. The law does not require that a Will be typed. A handwritten Will can be a valid Will, as long as it meets the requirements of the law. Even so, it is probably better to type the Will so that anyone can easily read it. I know that my handwriting is not very legible, so I would have a Will typed rather than handwrite it. As for witnesses, you need two.

Anyone who is 18 years or older and has a sound mind may make a Will. Under Minnesota Statutes Section 524.2-502, the requirements of Will are that it be in writing, that you (the testator) sign it in front of two witnesses, who also sign it. If you cannot physically sign the Will, you can tell another person to sign it for you, as long as they do so in your conscious presence. The signatures do not have to be notarized, but notarization is a way to show that the no one forged a signature (the notary public confirms identification of the signor at the time of the signing).

You can see that it does not take much to create a valid Will. However, there are things that you can do to make a stronger Will, which could better withstand potential attacks against it. To do the things to make it stronger, you would do well to go to a private attorney who practices in estate law. This attorney will know the wording to use to make the Will strong, and may also have other suggestions about how to get your wishes accomplished and make things easier for you and your family. For example, if your Will is written so that it references a list of tangible personal property, you can change this list anytime in the future without having to re-do the entire Will or create an attachment to the Will, called a codicil. The list is a nice feature because you do not have to sign it in front of witnesses. Other wording can be used to make the Will survive challenges. The people who may face challenges to their Wills are those in second marriages; have stepchildren; have disinherited heirs; and who leave things unequally, to name a few.

In these situations,

I believe it is wise to go to a private attorney to create a strong Will.

Most people believe having a

Will avoids probate for their families. A Will does not avoid probate. If a probate proceeding is opened, then the probate court will look to your Will to determine your intentions regarding your probate estate. If a probate proceeding is opened and you do not have a Will, then the court will use the intestate succession statute to determine how to distribute the estate. A probate is commonly opened if the testator owned real estate in their name only, if there is titled personal property totaling more than $50,000 (that did not go automatically to a beneficiary), and/or a creditor believes they have a claim against the estate that should be paid.

Even if probate is not needed, it is still wise to have a Will. The Will gives authority to your personal representative to wrap up your affairs after your death. This is especially useful if you suspect that someone will cause trouble for the person wrapping up the estate. Further, the Will shows your intentions about how you want your estate distributed, even if a probate is not needed. A Will can help take the guesswork out of things for your family. Loren, I encourage you to get a Will.

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org.

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