Yes, it is possible to challenge and even invalidate a will. There are some formal requirements to executing a will, such as it must be written, witnessed, and have the proper intent when executed. This is not usually where the real dispute lies.

While will contests are, thankfully very rare; there is sometimes a reason to challenge the will. One of the most common reasons for doing so is that the person creating the will, the testator, was not exercising his own free will but the will of another. For example, a caretaker uses his position of control over the testator to force the testator to change his will and leave everything to the caretaker.

While there are some valid contests that can be made for this reason, there are other factors to consider even if there is a valid claim to be made. First, these claims can be very emotionally traumatic claims to make. Very often, the case is not so clear-cut as a stranger who suddenly inherits everything but is a family member who is preferred. In such a case, making a claim that would invalidate the provisions of the will likely will result in very bitter family feuding and damage the family relationships so badly they will never heal.

Second, the costs involved in making these claims can be quite high. These claims require significant work and attention from an attorney, which is never a cheap proposition.

Third, the time involved may ruin the value of the estate. These claims are only infrequently resolved in a few months. If there is a time limit on realizing the value of the assets, and there often is, then the assets may be ruined by protracted litigation.

As a result, while it is possible to challenge a will and change the provisions of a will, doing so may not be in anyone’s interest. There are a number of reasons why making such a challenge may be worse than not making a challenge. Therefore, any will contest should be carefully considered before it is issued.

Our associate, Daniel Reynolds, did an excellent job advocating for the earmark ban on Fox 9 last night. You can view the video here

After a loved one passes away, assets need to be moved out of that person’s name and bills need to be paid. These tasks are accomplished in one of two ways. By far, the most common method is for a court case to be opened in a specialized court called the probate court. The other method is to transfer all the assets with a simple affidavit.

The second method, simply using an affidavit, is rarely used because the deceased must have very few assets. If the deceased did have sufficiently few assets, then typically an attorney drafts an affidavit that satisfies the legal requirements and the deceased’s loved ones can transfer the assets without going through the courts.

Usually, this situation exists because the deceased was destitute at the time of death. However, this procedure may be available to those who plan ahead. For some people, this is how they’d like things to be moved; with a minimum fuss and effort. Therefore, if they plan carefully, usually several years before death, they may be able to arrange a situation where this is possible. Prior to attempting any such actions, though, it is crucial to speak with an attorney because there are numerous potential pitfalls with taking these actions.

The much more common way of doing things, though, is to open a case with the courts. This is called a probate case. In this type of case, the courts appoint someone, called the personal representative, to oversee the payment of the deceased’s bills and disburse the deceased’s assets; this is typically called the deceased’s estate. In this situation, the court and personal representative will look at the will, if any, and follow the will.

By law, there is a set order to the payment of everything. Essentially, bills get paid first, and the heirs get paid after the bills are paid. The process typically takes about a year but may be shorter or significantly longer. The process typically costs several thousand dollars as well. Fortunately, Minnesota is cheaper than some other states that have notoriously high fees.

Some of the items that can impact the time and cost are whether there is a will, the function (or disfunction) found within the family, and the size of the estate. Not having a will virtually guarantees that the process will be a bit longer and more expensive than if there were a will.

Typically, probate cases are mostly ministerial matters where forms need to be completed and formalities need to be followed but without much conflict. However, conflict can arise in a probate. The conflicts typically revolve around one of two issues.

First, is the disposition of assets. Typically, this happens when someone challenges the will. The most common argument is that someone improperly influenced the deceased into putting provisions in the will that the deceased otherwise would not. This type of litigation is commonly between siblings and frequently inflicts great harm on the family relationship.

Second, is the value of certain assets. Commonly, the personal representative needs to sell property in order to pay bills or simply for the sake of convenience. This particularly true with real estate, which is an illiquid asset. The personal representative has a duty to do his or her best, and contests sometimes arrise because an interested party believes the personal representative is obligated to get a better price than the personal representative is proposing to obtain.

While probate contests can and do arise, they are very infrequent. Most probate matters do not experience conflict in the courtroom and are generally handled without too many hard feelings.

A power of attorney is an authorization for someone else to act on your behalf. The person who has the authority to act on your behalf is called the “attorney in fact.” The attorney in fact has whatever powers you grant the attorney in fact. For example, you can choose to give the attorney in fact the right to buy or sell real estate for you or to access your bank accounts or you can choose to not give the attorney in fact those powers. A power of attorney can either be effective immediately or only take effect upon some specified event occurring.

The real value of the power of attorney is that it allows someone to act for you when you cannot act for yourself. Common uses of the power of attorney are to pay your bills in case you are injured and unable to do so yourself or to take care of your financial affairs in case you receive a mental impairment.

Recently, a client came to me and asked what he could do to help a family member collect some debts owed to that family member and pay for the family member’s medical care. The checks had been received, but the family member was ill and unable to deposit or cash the checks. The money from the checks was needed immediately, though, for the care of the family member. Fortunately, there was a valid power of attorney in place that allowed the client to deposit those checks into the family member’s account and write checks to the hospital to cover the family member’s care.

The same client also asked, though, if he could do the same thing for another family member who has Alzheimer’s. Unfortunately, the family member with Alzheimer’s did not have a valid power of attorney (nor did he have a trust) and, due to his condition, is now unable to execute a power of attorney. As a result, the client had to go through a very cumbersome and expensive court procedure to handle that family member’s affairs. A valid power of attorney would have prevented that problem and made things much cheaper and easier.

A power of attorney is typically very cheap and extremely useful. For that reason, I encourage everyone to at least consider using some type of power of attorney.

Some attorneys and some non-attorneys, such as Suze Orman, push living trusts. In my opinion, this is not necessary and is actually counter productive for many people.

This is not to say that living trusts are useless or not worthwhile for some people. Quite the contrary, for the right person or family, a living trust is clearly the best option. The key is knowing when the living trust should be used and what provisions should be included.

The typical reason given for using these trusts is to remove assets from the probate process. If created properly, as the typical living trust is, the property included in the trust is removed from the probate court’s jurisdiction. Removing assets from the probate process means those assets are not subject to the costs and burdens of probate, which is of some benefit.

This benefit is much less in Minnesota than some other states, though, because Minnesota’s probate procedure is not nearly as expensive as some other states. For some estates, the probate might cost $5,000. For other estates, the probate might be $60,000 plus significant taxes.

However, the benefits should be weighed against the costs. When a living trust is created, it does not automatically give you the benefits. Instead, the property must be transferred into the trust. This is often a time-consuming and expensive process. In fact, this is often where much of the attorney fees are generated.

In addition to the need to fund the trust, there are the added administrative burdens of the trust. When an asset is held in trust, the ownership of the property is split between two or more people. As a result, it becomes more cumbersome to deal with the property. For example, a real estate transfer of non-trust property is actually fairly simple; the deed is straight forward and no lawyer is required to complete the transfer. However, when a trust is involved, a different deed is needed and additional documents are required. As a result, there are additional recording fees, and it is advisable, if not necessary, to retain an attorney to do the transfer.

Lastly, a living trust in and of itself does not address estate taxes if those are due on an estate. Additional trusts, sub-trusts, or complicated provisions are required to deal with estate taxes. This is also quite an expensive endeavor and often costs thousands of dollars. This investment is very worthwhile for some people but utterly useless for others.

In short, living trusts have their uses, but, in my opinion, some people overuse them. A living trust is an expensive tool, and the costs it will save must justify the costs.

I would say no. I don’t say this to advertise my own estate planning services but because I actually believe LegalZoom is not a good service. LegalZoom has been sued a number of times on claims such as deceptive trade practices and that the documents do not work as advertised.

http://practiceblawg.com/2010/07/legalzoom-sued-again/

My real objection to LegalZoom, though, is that it fails to provide the key item to legal work, which is legal advice. Having forms for different things is unhelpful if you do not know which form to use or not use and do not know how to use the form or even when to use it.

For example, say you are a Suze Orman devotee and decide to take her advice and get a revocable living trust from LegalZoom (or from Suze Orman). Do you really understand how to use the living trust and what the costs and benefits of the trust are? I daresay most people simply buying a form really do not understand any of those issues. In fact, the living trust is not suitable for many people, and they get costs from it without any real corresponding benefit.

Or, how about you purchase a will from LegalZoom to make sure your children are taken care of. Do you know what terms to include in the will? Have you thought about a pour-over provision coupled with a trust? Most have not, and this failure to get advice will actually cost them quite a bit of money in the long-run.

When you have minor children, simply appointing a guardian in the will is not really sufficient to protect your children’s interests nor is leaving money to the children outright. Such an approach virtually guarantees that your children will not get as good legal treatment as they would if you had gotten good legal advice.

In short, I am not a fan of LegalZoom. The actual forms it creates may or may not be fine, but the key is not the form itself. The key is knowing which form to use, how to use it, and when to use it. Without that important advice, you may ultimately end up paying significantly greater expenses for a product that does not do what you want it to do.

No. Despite the similarities in the names, the two are actually quite different. A living will is a document that deals with one’s wishes for that person’s health care. Obviously, this document is only effective while the person who created it is alive. Living wills have largely been superseded in Minnesota by the Health Care Directive.

A will, on the other hand, has nothing to do with anyone’s health care. Instead, it deals with the disposition of a deceased person’s assets, i.e. this is the document used to leave assets to loved ones after one’s death. Wills are still very important and remain a valuable part of most estate plans.

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