Getting the Estate Planning Conversation Started

I had a meeting with a client the other day who brought up the fact that she didn’t know how to talk with her mother about her mother’s Will. 

For my client, having conversations about dying and money with her mother was not easy.  My response?  I’m not surprised.

Nobody wants to talk about the possibility of their loved one dying.  I know I don’t.  I will also admit that if I wasn’t a lawyer, I probably wouldn’t want to talk about dying and money with my mom or dad.  Fortunately, they are still alive and I am lawyer.

So, what do I talk about with my parents? 

I tell them that they need to get some estate planning done.  It doesn’t have to be complicated; they just need to do it.

I tell my parents that they need to at least be aware of their eventual death and plan accordingly.  If not for themselves, then for my brothers and I.  The more direction my parents give us, the easier it will be to administer their estate in a simple, concise, and inexpensive fashion.

Then I tell them the basics of how to create a Will in Minnesota.  Pursuant to Minnesota law, a Will must be:

(1) in writing;

(2) signed by the person making the Will, or in the Will-maker's name by some other person in the Will-maker’s conscious presence and at the Will-makers direction, or signed by the Will-maker’s conservator pursuant to a court order;

(3)  signed by at least two individuals, who each signed within a reasonable time after witnessing either the signing of the Will or the Will-maker’s acknowledgment of that signature or acknowledgment of the Will.

The Will-maker must also have legal "capacity," meaning the Will-maker must have the mental capacity to know what he or she is doing.  Capacity issues often come up in death-bed Wills where it is questionable whether the deceased person really knew what they were doing before death.

Those are the basics behind drafting a valid Will in Minnesota. 

As I discuss with my parents, they need to think about other things like a living-will, powers of attorney, who will be their personal representative or executor, and the possibility of creating a Trust. 

At the very least, just like I told my client, they just need to get the conversation started.

For further questions about any of this information, feel free to give Joseph M. Flanders, a Minnesota estate planning lawyer, a call at (651) 560-3216 or email me at jflanders@flanderslawfirm.com.