HEALTH CARE DIRECTIVES – FREQUENTLY ASKED QUESTIONS

WHAT IS A HEALTH CARE DIRECTIVE?

A health care directive is a legal document that allows you to state your wishes regarding your health care.  The directive also allows you to name a health care agent who can make decisions regarding your health if you are not able.

WHY DO I WANT A HEALTH CARE DIRECTIVE?

A health care directive protects your health care wishes in the event you become unable to make decisions for yourself.  The directive allows you to make your health care wishes known to your health care providers, by way of a written, legal document.

A health care directive also allows you to appoint someone to make health care decisions on your behalf.  You are able to choose someone you trust and who is familiar with your health care beliefs and preferences.

WHAT TYPES OF DECISIONS ARE MADE IN MY HEALTH CARE DIRECTIVE?

A health care directive allows you to include virtually any instructions you wish regarding your health care.  Some common instructions include:

  • Naming a health care provider
  • Conditions under which you want to refuse medical treatment
  • Preferences for different types of medical care
  • Your religious beliefs and how they affect your medical care

WHAT IF I WANT TO REVOKE MY HEALTH CARE DIRECTIVE?

As long as you are deemed to have the mental capacity to do so, you may revoke your health care directive at any time.  In order to do so, you must either 1) make a new health care directive; 2) destroy the health care directive; 3) make a written statement revoking all or part of the directive; or 4) make an oral statement to two witnesses that you want the directive revoked.

AFTER A HEALTH CARE DIRECTIVE IS DRAFTED, WHAT DO I HAVE TO DO?

You must sign your health care directive in the presence of two witnesses or a notary.  Witnesses should not be named as agents in the directive.  If you take these steps, the directive will become legally binding.

WHAT DO I DO WITH MY HEALTH CARE DIRECTIVE?

Most people give copies of their directive to their doctor or health care provider, give a copy to their named health care agent, and keep a copy in a safe place— like a safe deposit box or at your attorney’s office.


TRANSFER ON DEATH DEED – FREQUENTLY ASKED QUESTIONS

WHEN SHOULD I GET A TODD?

If you have decided to use a TODD to transfer real property, you should have the document drafted and recorded immediately.  A TODD must be recorded during the lifetime of the owner to be valid.

I HAVE A TODD.  WHAT HAPPENS TO THE PROPERTY AFTER I DIE?

After the owner’s death, the beneficiary named in the TODD must record a death certificate and affidavit of survivorship and clearance certificate (from medical assistance claims and liens) to have the property put into the beneficiary’s name.

IF I HAVE A TODD, DOES THE BENEFICIARY HAVE RIGHTS TO MY PROPERTY?

No.  Minnesota law specifically provides that a designated beneficiary has no rights to the owner’s property during the owner’s lifetime.  Beneficiaries cannot transfer, mortgage or pledge any interest in the property as long as the owner is alive.

CAN I REVOKE A TODD?

Unlike other types of deeds, an owner may revoke a TODD or simply record a new one naming a different beneficiary at any time.  Like the TODD itself, a revocation must be recorded prior to the owner’s death.

CAN I NAME MORE THAN ONE BENEFICIARY?

Yes.  An owner may name a contingent beneficiary or a class of beneficiaries who get the property if the original beneficiary dies.

IS A TODD SUBJECT TO STATE DEED TAX?

No.  Transfer on Death Deeds are exempt from state deed tax per Minn. Stat. 287.22(15).

DOES A TODD AVOID ESTATE TAXES?

No.

DOES THE TODD PROTECT THE PROPERTY FROM CREDITORS?

No.  Mortgages or other liens that become attached to the property during the owner’s lifetime carry over to the beneficiaries.

WHY SHOULD I GET A TODD?

A Transfer on Death Deed can be very beneficial for small estates, including situatons where there is one owner and one beneficiary, unmarried committed partners, or individuals who do not need the tax benefits of a trust.

Transfer on Death Deeds allow real property to avoid the probate process and can protect property from a beneficiaries creditors during the owner’s lifetime.


WILLS – FREQUENTY ASKED QUESTIONS

What is a Will?

A Will is a written document directing the disposition of the person’s assets after death. A Will can also deal with issues such as guardianship of minor children.  If you do not have a Will, state law determines who will receive your assets after your death, regardless of your wishes.  The probate process becomes more difficult and expensive in the absence of a Will.

What Makes it Legal?

To make a valid will under Minnesota law:

  • You must be at least 18 years old;
  • You must be of sound mind;
  • The will must be written;
  • The will must be signed by the Testator; and
  • The will must be witnessed by at least two qualified witnesses, each of whom must also sign the will as witnesses.

What Can a Will Accomplish?

A will gives you the opportunity to exercise your right to say what happens with your assets after your death. If you have minor children, it gives you the opportunity to state your preference for a guardian for your children.

You decide who receives your assets after your death. You have the right to say who receives your assets after you die, but only if you say it in a valid will. Telling your son that he will get the farm after you’re gone will not cause him to inherit it, even if you tell everyone else in the family, unless you also put it in writing in a valid will. Of course, there are some restrictions on disinheriting your spouse, and some legal requirements to protect your minor children.


You nominate a Personal Representative or Executor. Generally, a will also nominates someone to act as “personal representative,” or “executor. The personal representative is entrusted with the job of seeing that the provisions in the will are carried out.


You can nominate a Guardian for your minor children. A will may also nominate a guardian for the person’s minor children in case the person dies before the children reach adulthood. Although this is evidence of your wishes regarding who should care for your minor children after your death, it is not binding on a Court.


You can include one or more trusts. Your will can direct that your assets be distributed outright to your beneficiaries or you can name a trustee hold one or more beneficiaries’ shares be held in trust to be used for their benefit. This is a good idea if your beneficiaries are minor children or if you have a beneficiary who is disabled.

You can include provisions to minimize potential estate tax. If your estate is large enough to raise the issue of potential estate tax, your will can include provisions to minimize the impact of estate tax on your beneficiaries.


What Are the Limitations of a Will?

There are several ways in which a Will may not accomplish what it was meant to accomplish. Here are some of them:

Wills don’t apply to “non-probate property”. A will does not govern what happens to what is sometimes called “non-probate property. “Non-probate property” is any property that passes directly to one or more beneficiaries named in a deed, beneficiary designation, account agreement, or other document that governs what happens to the asset on your death. Examples of non-probate property:

  • Life Insurance;
  • Some types of bank and investment accounts;
  • Real estate if the title is held as “joint tenants with right of survivorship;”
  • Retirement plans and IRA’s;
    • Assets held by a trust can be non-probate property

What this means is that if you name someone as your beneficiary under a life insurance policy or other asset and then you later decide that you do not want that person to share in your estate, simply removing that person from your Will won’t change the beneficiary designation under the life insurance policy or other asset.


Divorce can automatically change your Will. Suppose a husband and wife each have a will that leaves all of their assets to each other and each spouse nominates the other as personal representative of his or her estate. Suppose further that sometime after signing these wills the husband and wife divorce each other. Most of the time, people in this situation want to take the ex-spouse out of their will, and some of the time, they get around to executing a new will that accomplishes that. Even if they don’t get around to it, however, probate law does it for them. A divorce or annullment automatically revokes will provisions in favor of the former spouse, including any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.

Do I Need a Will?

It depends on whether you care about how your assets are administered and distributed after your death. If you want to take advantage of your right to direct the disposition of your assets, you need a will.


What Happens if I Die Without a Will?

It is unknownBecause probate law changes from time to time, it’s impossible to tell for sure what the rules will be at some unknown future date. If you move to another state before your death, the law that will apply to your estate may or may not be the same as we now have in Minnesota. Even if all of your assets are “non-probate property,” you have designated the beneficiaries you wish to receive the property, it is usually impossible to tell ahead of time whether you will out live your beneficiary. If you do, the asset may cease to be a non-probate asset, and if it does it will be subject to whatever the applicable probate law requires.


What Does Current Minnesota Law Say About What Happens if I Die Without a Will?

Generally, your estate is responsible for valid debts, taxes, and claims. After these are paid, your estate is distributed to your heirs. If you are domiciled in Minnesota at the time of your death, the Homestead, Family Allowance and Exempt Property paragraphs are applied first to determine what constitutes your “intestate estate.

Homestead. Generally, your surviving spouse, if any, is entitled to your homestead; if you have any descendants who also survive you, your surviving spouse is entitled to a life estate in the homestead, with your surviving descendants being entitled to a remainder interest in the homestead; if you die without surviving descendants, the spouse is entitled to the homestead. A homestead that passes by descent or will to your surviving spouse or descendants is exempt from all debts that were not valid charges against it at the time of your death except for claims for state hospital care and medical assistance.

Family Allowance. Your surviving spouse, your minor children and children you supported while living, if any, are entitled to claim a family allowance for up to 18 months after your death.

Exempt Property. Your surviving spouse, if any, is entitled to one automobile, regardless of value, and up to $10,000 in value of household furniture, furnishings, appliances, and personal effects. If the value of household furniture, furnishings, appliances and other personal effects are worth less than $10,000 then other personal property can be used to make up the difference. If there is no surviving spouse, your children are jointly entitled to this property. The rights of your adult children to exempt property are subject to certain debts, taxes and claims against your estate.

Remainder of Estate. Any part of your estate not disposed of under the preceding rules or used to pay valid debts, taxes and other claims is distributed according to the following rules:

1. Surviving spouse and traditional family If you have a spouse that survives you, and either (a) you leave no surviving descendants; or (b) all of your surviving descendants are also descendants of your surviving spouse and there is no other descendant of the surviving spouse who survives you, then your surviving spouse is entitled to all of the assets remaining in your estate;

2. Surviving spouse and “blended family” If you have a spouse and descendants who survive you and either (a) all of your surviving descendants are not also descendants of your surviving spouse; or (b) there is a surviving descendant of your surviving spouse who is not a descendant of yours, then your surviving spouse is entitled to the first $150,000, plus one-half of any balance of your intestate estate;

3. Balance of Intestate Estate. The remainder of your estate, if any, or if there is no surviving spouse, all of your estate goes in the following order to the individuals designated below who survive you:

(a) to your descendants by representation;

(b) if there is no surviving descendant, to your parents equally if both survive, or to the surviving parent;

(c) if there is no surviving descendant or parent, to the descendants of your parents or either of them by representation;

(d) if there is no surviving descendant, parent, or descendant of a parent, but you are survived by one or more grandparents or descendants of grandparents, half of the estate passes to your paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of your paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to your maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to your relatives on the other side in the same manner as the half;

(e) if there is no surviving descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, to the next of kin in equal degree, except that when there are two or more collateral kindred in equal degree claiming through different ancestors, those who claim through the nearest ancestor shall take to the exclusion of those claiming through an ancestor more remote.

Does a Will Avoid Probate?

No. There are ways to avoid probate, but a Will is not one of them.

Can I Make My Own Will by Writing Out What I Want and Signing It?

A signed document stating what your want will not be considered a valid Will in Minnesota.

Does a Will Apply to All of My Assets?

Not necessarily.

When Should I Change my Will? 

The rule of thumb is to update your Will whenever a significant life event occurs. Changes in your life or those of your beneficiaries, changes in your goals, or changes in the law can occur at any time.  If those changes occur, your existing Will will no longer reflect your wishes and no longer will accomplish your objectives.

You should review your will periodically, especially after major changes in your life, to see if it still reflects your intentions.