One of my more frequently used sayings about the use of a lawyer is that “DIY = SOL”, meaning that many people try to forego the use of a lawyer to save on costs, only to have something happen later that results in a greater cost than if the person had just used a lawyer to assist in the first place. This is particularly applicable when it comes to estate planning.
This past week I attended a presentation hosted by Hall of Fame Financial and featuring remarks by my good friend and client – and Vikings Hall of Famer – Carl Eller. The topic? Planning for retirement.
Craig Enokian of Hall of Fame Financial spoke after Mr. Eller. While he talked about a variety of financial topics, one of his statements regarding estate planning struck me. Craig said: “you will be judged by the estate plan you create or the one you don’t create”, meaning, of course, that your assets have to go to someone upon your death; creating an estate plan gives you the right to control who those assets go to. If you fail to create a plan, your plan will be chosen for you.
Craig’s statement made me think back to a recent WCCO TV story about a man who thought he was creating an estate plan, but instead failed to meet the very minimal requirements which Minnesota has established for a will to be valid.
Minnesota Statute Section 524.2-502 states that a will must be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction or signed by the testator’s conservator pursuant to a court order; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will or the testator’s acknowledgment of that signature or acknowledgment of the will.
Without a valid will, Minnesota’s laws of intestate succession control who gets what from a person’s estate. The intestacy statutes contain a myriad of “what ifs” and act as a default estate plan for those that fail to create their own. Some refer to the intestacy laws as the “State’s estate plan.”
Back to the WCCO story. When Minneapolis resident Gary Kruger died earlier this year, his cousin, Jill Widman, discovered that one signature kept his hand-written will from being followed. That one missing signature resulted in the will not being valid under Section 524.2-502 and as a result, Mr. Kruger’s estate was governed by the intestacy laws. Suffice it to say, the intestacy statutes produced a different result than what Mr. Kruger set forth in his will.
There are other reasons to consult an attorney when preparing an estate plan. For example, a trust may be useful to minimize taxes. Also, asset protection during one’s lifetime may be important, making a family limited partnership or limited liability company an attractive estate planning tool.
At the end of the day, here’s what I tell clients: estate planning may be a singular occurrence in your life (granted, there are those cases where amendments are warranted); for attorneys who practice estate planning, it is an everyday occurrence. Put another way, if you hire plumbers, electricians and other contractors for your house, if you see doctors when you are ill or injured, why the heck don’t you see an attorney for your legal needs such as an estate plan?
Trust me, we don’t bite.
Jeffrey O’Brien is an attorney with the Minneapolis-based law firm of Lommen Abdo, P.A. He can be contacted at email@example.com. NOTE: the information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting the author does not create an attorney-client relationship.