A legal question and answer column for seniors.

DEAR SENIORS LEGAL LINE:

My friends tell me that I absolutely need a Will. They tell me that my family will have to go through probate if I do not have one. They also tell me that the state of Minnesota will get my property if I do not have a Will. I am getting nervous - are my friends correct?

I am a widow with two children. I do not own any real estate; I live in an apartment. My bank accounts total about $13,000 and I have one car worth about $2000.

Signed Daisy

DEAR DAISY:

Our office does not draft Wills for clients, but we do discuss them with clients who have questions. While it is never bad to have a Will, not everyone needs one. Perhaps it is best to first understand what will happen if you die without a Will in order to determine if you need one.

Probate is a court process in which your property is collected, debts are paid, and then the property is distributed according to either the state inheritance laws or your Will.

If you have no Will and have a “small estate,” your next-of-kin will not have to go through probate. A small estate means that you have no real estate solely in your name, and that your titled personal property does not total more than $20,000. I believe you have a small estate based on the information you provided: you do not own real estate and your titled personal property equals about $15,000. Your next-of-kin could collect your titled personal property by using an affidavit procedure. They would fill out an “Affidavit of Collection of Personal Property” and give it, along with your Death Certificate, to the holder of the titled personal property and holder will give the property to your next-of-kin.

If you have no Will and have a bigger estate, and/or have real estate in your name only, then your next-of-kin will have to go through probate in order for your property to be distributed. Minnesota inheritance laws divide your property equally among your closest living next-of-kin. In your case, your closest living next-of-kin are your two children, who would get your property equally. If you do not want your children to get equal shares, then you may wish to have a Will. It is rare that the Probate Court would not find a living next-of-kin. In those rare cases, the State will receive your property.

Having a Will does not avoid probate. If a Will is used, it has to go through the probate procedure. However, there are ways to avoid probate. For example, you may name one or more beneficiaries on your bank accounts. These “payable on death” or “POD” beneficiaries have no access to your bank account while you are alive, but automatically become the owner upon your death. Also, if your other titled personal property falls below the small estate classification of $20,000 at the time of your death, your family may use the affidavit procedure to collect your property.

Your friend’s comments do not fit everyone’s situation. I encourage everyone to plan for the future. For some people (such as yourself), a Will may not even be used. For others it may be essential. People who may need a Will are those who have a bigger estate, have real estate, want their property distributed unequally amongst their next-of-kin, want to leave someone out who otherwise would inherit, want to leave property to a charity or non-relative, want to name a guardian of a minor child, and/or are in a second marriage. Minnesota requires that a Will be in writing and signed in front of two witnesses, who also sign. It is worth mentioning that a Will may be contested. However, the Probate Court will look to the stated intent of the deceased in his or her Will. It wise to talk to a lawyer if you wish to have a Will drafted so that your intent is clear.

The Minnesota Attorney General’s Office also has information about probate and planning on their website at www.ag.state.mn.us.

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us for legal help or questions by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprint by permission only.