Get a Better Understanding of What Wills Are, What They Do, Rjg0 and How They Fit Into an Estate Plan
FACTS ABOUT WILLS IN NORTH DAKOTA
RAYMOND J GERMAN NORTH DAKOTA ESTATE PLANNING ATTORNEY
Most people know what a will is, but fewer know what you can do with a will or what’s involved in creating these important legal documents. Wills form an essential piece of every estate plan. Even though your plan might include other elements that play a larger role, a will is still a necessity. To get a better understanding of what wills are, what they do, and how they fit into an estate plan, we’ve assembled this list of facts.
WILLS AND INTESTACY The primary purpose of a last will and testament—the more formal name for a will—is to state your preferences about how your property will be distributed after you die. When you die and leave behind any kind of property—called an estate—someone else will have to become the new owner. The law allows you to choose how to distribute your estate by creating a will and stating your inheritance choices. Though there are other methods available for accomplishing this goal, you must use a will to distribute any property you own as an individual. If you don’t make a will, the individual property you leave behind will still have to be distributed to new owners after you’re gone. But who inherits that property if you haven’t made your wishes known? Dying without a will is known as dying intestate. When this happens, state laws decide who the new owner of the decedent’s property becomes. Though these intestacy laws differ between states, they are generally similar, and give property to the decedent’s closest surviving relatives. For example, North Dakota’s intestacy laws (North Dakota Century Code section 30.1-0401 et . seq.)direct that if a person dies intestate and leaves behind a spouse but no
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children, that person’s spouse inherits all of his or her property. If there are surviving children and a surviving spouse, the spouse still inherits everything. However, if an intestate person leaves behind no surviving spouse, but does have surviving children, those children inherit the estate in equal portions. In other situations, such as where there is no spouse or surviving child, the decedent’s parents, siblings, or other relatives could inherit. If there are no identifiable living relatives, the state of North Dakota becomes the legal heir.
WILL VALIDITY Anyone can write a document and call it a will, but in order for a court to accept that document as a legally valid will, the document must meet very specific criteria. Like intestacy laws, these criteria differ slightly from state to state, though there are commonalities. First, a will has to be made in writing. Those making wills, called testators, can write them on their own, or have someone else write them on their behalf. Second, testators must sign their wills, and do so in the presence of two witnesses. Those witnesses must then also sign. In many states, such as North Dakota, the witnesses must be “disinterested.” This means that they can’t inherit from the will or inherit from the testator.
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Third, the testator must be capable of making a will. To be capable you must be an adult of sound mind. Being of sound mind means that you understand what you own, know who stands to inherit that property, and are able to make your own decisions about your inheritance choices. There are also some states, including North Dakota, that recognize the validity of holographic wills. A holographic will is one that a testator makes entirely in his or her own handwriting. Such wills must be signed by the testator but do not need to be signed by witnesses.
WILL CHOICES Even though all trusts operate under the same basic principles, there is a significant difference in the types of benefits they convey. The law gives certain trusts some rights, while other trusts have different rights. It’s therefore very important to be able to distinguish between the different types of trust available to you. In addition to serving as a document in which a testator can state inheritance wishes, wills also allow testators to state their wishes about other important choices.
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First, a testator can state his or her preference for a personal representative. The personal representative, also called an executor, is responsible for managing the estate during probate. Probate is the legal process that takes place after a person dies in which the court supervises the transfer of the estate property to
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the inheritors. Second, the testator can include a guardianship nomination. If the testator has young children, he or she can choose who will become the child’s guardian after the testator dies. Also, apart from inheritances, guardians, and personal representatives, a testator can also use a will for other purposes. For example, the testator can direct for the creation of a trust. This is commonly done when a testator leaves property to young children or grandchildren and wants to keep that property in a trust until the child or grandchild becomes old enough.
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For example, you cannot use a will as an advance
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medical directive. Advance directives, such as a living will, tell your doctors what your healthcare and medical treatment choices. Wills are not suitable for this purpose. Also, wills are not suitable for deciding how you want to distribute non-probate property. Property you do not own as an individual, as well as certain types of individually owned property, pass to new owners after your death without first having to go through probate. Non-probate property includes, for example, property you own under the name of a living trust, or property you own as a joint-owner with someone else. You cannot use your will to distribute nonprobate property.
BEYOND WILLS Whether they are simple or complicated, wills are vital legal documents that every capable adult should have. You can always change your mind about the choices you make in your will, but if you don’t have one, you leave those choices up to others to make. A will is also something you need to craft with care. A person without the appropriate legal background can write a will, but there’s no way to know whether your will addresses the issues important to you. No two wills are identical, and to create a document that matches your needs, you need the assistance of an estate planning lawyer.
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About the Author Raymond J. German As an attorney in Minnesota and North Dakota, Raymond J. German provides a wide range of estate planning and title services to his clients, with a primary focus on helping them provide for the security of their loved ones, reduce estate taxes and avoid or at least minimize the costs and delays of probate, all with a well-crafted estate plan. Mr. German defines the mission statement for Raymond J. German, LTD. Law Firm as "Helping one family at a time pass on values, beliefs and finances, that can be shared for generations to come." Mr. German is well aware of the growing importance of estate planning and dedicates himself to informing the public of the need for careful attention to their specific situations. He is a frequent speaker on a variety of estate planning topics, regularly presenting educational seminars for the public as well as private groups. Raymond J. German approaches each challenge with not just solid expertise, but also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and more effective ways of doing things, he continues to make a real difference in the lives of families and on the way estate planning is practiced by attorneys around the country.
German Law Group, PC www.GermanLawGroup.com GRAND FORKS 2650 32nd Avenue South, Suite O Grand Forks, ND 58201 Phone: (701) 738-0060 Toll Free: (800) 774-7576 Fax: (701) 738-0064
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