It’s easy to understate the relationship between Estate Planning and Probate Law: Estate Planning involves planning your eventual inability to speak for yourself. Probate law takes over when the ultimate inability to speak for yourself takes over - your passing from this life. (This assumes certain circumstances, such as assets left behind in your name alone.) But this simple relationship underscores something profound:
Estate Planning and the Law
We, through our probate laws, have built a system that not only allows us to express our wishes beyond our ability to speak for ourselves, but also enforces those wishes with the full power of our justice system. Properly created, your Estate Planning documents become “law” unto themselves, which a judge will enforce on your behalf.
If you Die or Become Incapacitated without Properly Documenting your Wishes, the Statutes will Decide for You.
If you pass away in Minnesota without a Will or Trust, Minnesota statutes determine who will inherit your estate (“estate” meaning, generally, all assets which your leave behind.) See Minnesota Statutes 524,101. Your assets will pass by operation of law to your surviving spouse, children, and/or nearest classifications of relatives in statutorily defined shares and amounts. This statutory distribution may or may not be what you would have intended. In one example that we often hear about: if you have a long-time partner that you are not married to, there is generally no provision in the law that will provide assets to them. Without estate planning documents that provide otherwise, all of your assets will pass to your next closest of kin. Similarly, if you become incapacitated (e.g. serious chronic memory issues or traumatic brain injury), absent a properly drafted Power of Attorney and Health Care Directive, a costly Guardianship proceeding may be required in order for a loved one to establish the legal authority to speak for you.
If you have properly-drafted estate planning documents in place, your wishes have the force of law.
Within limits, if you have left behind a properly drafted and executed Will or Trust agreement, your wishes take priority over what would otherwise be a statute-driven asset distribution. See Minnesota Statutes 524.101. Under Minnesota law, you may not entirely disinherit your spouse and children. See Minnesota Statutes 524,402, 524,403, and 524.404. But absent that limitation, assuming proper drafting and execution of your estate planning documents, you can decide:
Who inherits your assets (your “Beneficiaries”)
Who administers your estate (your “Personal Representative”, previously known as “your Executor”. “Estate Administration” generally means taking control of your assets, paying valid costs and claims on your behalf, and distributing your remaining assets (your “residuary estate”) as you have detailed in your estate planning documents.)
Who has legal authority to continue or complete your personal business transactions (your “Attorney in Fact” under a Power of Attorney)
Who has the authority to speak for you regarding medical decisions (your “Health Care Agent”; also having the authority to review your medical records.)
See our handy guide: Estate Planning Legal Toolkit for a one-page overview.
The Probate Court will Enforce Your Wishes
If Probate is required at your passing, a presiding Probate Registrar or Judge will “admit” your Will to Probate, and directly oversee the administration of your estate. This means that, assuming properly documented estate planning documents and within the limitations sited above, your wishes have the power of law. In the Probate Court setting, the judge will “probate” your Will, meaning that it will be adjudged and authenticated as your witnessed and notarized Last Will and Testament. From that point forward, the court will oversee and approve that your wishes are properly administered (followed through on) by the Personal Representative that you have nominated in your Will. Even in an Unsupervised Informal Probate, your Personal Representative must provide, in a sworn Personal Representative’s Statement to Close, that all of your wishes as stated in your estate planning documents have been fulfilled. Any person wishing to contest or argue your wishes must make their case, formally, in front of the judge. Your estate planning documents have the force of law. A judge will enforce your properly stated wishes as contained in your estate planning documents.
Posted by Thomas C. Myers IV
Please remember, this post provides educational information only and in no way constitutes legal advice.