A Closer Look at Minnesota and North Dakota Intestacy Succession Laws and Why It Is So Rjg0 Important In Your Estate Plan
INTESTACY AND ESTATE PLANNING
RAYMOND J. GERMAN NORTH DAKOTA ESTATE PLANNING ATTORNEY
While many people know that creating an estate plan can allow you to make decisions about how you want to leave inheritances, most people don’t realize that every state has already made your inheritance decisions for you. Through laws of intestate succession, all states predetermine how your property will pass after you have died. The only way to avoid these intestacy laws is to create an estate plan that enshrines your inheritance choices. Let’s take a closer look at intestacy and why it is so important in your estate plan.
INTESTATE SUCCESSION By creating a last will and testament, people in Minnesota and North Dakota can make their own inheritance choices. Someone who dies leaving behind a last will and testament is said to have died testate. On the other hand, people who die without leaving behind such a device are said to have died intestate. Intestate succession, therefore, is the manner through which your property is transferred to your legal heirs when you have not left behind a valid last will and testament.
INHERITANCES So how do inheritances work under intestate succession laws? Though every state has its own set of laws, they all operate in the same basic manner. The person responsible for administering your estate, called an administrator or an executor, will have to determine who survived you after you die. The closest living relative(s) will typically inherit your property. To get a better idea of how this works, let’s take a look at several scenarios.
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For example, let’s say you died without leaving behind a last will and testament. At the time of your death you were not married, did not have any children, and your closest surviving relative was your father. In this situation, your father would inherit everything you own. This is true even if, for example, you had a romantic relationship with someone, and had been living with that person outside of marriage for the past several decades. On the other hand, let’s say you died leaving behind a spouse and children from a previous marriage. If you died in North Dakota, your spouse would inherit the first $150,000 of your property, plus half of what is left over. Your children would then divide the remaining half between themselves. Finally, let’s say you died with the spouse, no children, and two surviving parents. In this situation, if you died in North Dakota, your spouse would inherit the first $300,000 of your estate. Whatever remained would be divided between your spouse, who would receive three quarters of the remainder, and your parents, who would receive the remaining quarter. Of course, this is only a small number of the possible scenarios of that intestacy laws deal with. If a person dies with no close relatives, more distant relatives might be entitled to receive all of his or her property.
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ESCHEAT In very rare situations, people who die intestate leave behind no identifiable living relatives. Though this doesn’t happen very often, all states have laws that address what happens when it does. These laws, known as escheat, essentially state that all the property left behind by someone
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who dies intestate who has no identifiable living relatives transfers to the state in which they live. This final safety net means that it is possible that all of your property could transfer to your state should you die without a will.
SURVIVORSHIP Intestacy laws also include some relatively obscure provisions. For example, every state has a survivorship law that must be met in order for someone to inherit from a person who dies intestate. In both North Dakota and Minnesota, a beneficiary must outlive the decedent by 120 hours. This means that to inherit property from a deceased person, the inheritor must continue to live for least five days after that person dies. For example, let’s say you are not married, don’t
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have any children, and don’t have any living relatives other than a brother and a sister. You and your brother are involved in a car accident. You die, and your brother dies four days and 23 hours later. In this situation, your sister would stand to receive your entire estate because your brother did not survive you for at least five days. If your brother had lived for another hour or two, he and your sister would each inherit half of your estate.
WILL VALIDITY It’s important to highlight the idea that intestate succession laws apply to any estate that does not have a valid last will and testament. Validity means that the will you make meets the legal requirements of the state in which you live. So, for example, if you live in Minnesota, you will have to create a will that meets the legal certain standards. If your will fails to meet the standards, a court will deem it invalid. When this happens, it will be as if you had died without leaving behind any will at all. So, your estate will then be distributed in accordance with the intestate succession rules of Minnesota, instead of the wishes you expressed in your invalid last will. (This is also one of the primary reasons why creating a will, though simple, must be done carefully and with precision.)
AVOIDING INTESTACY Intestacy laws are very reasonable. They allow state courts to apply a uniform set of rules that predetermine who inherit your property should you die without leaving behind an estate plan. If we didn’t have these laws, courts would essentially have to try to determine what each person’s wishes were. They might
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have to hold lengthy hearings and trials or rely on unreliable evidence or testimony just to try to determine who should inherit property. Intestacy laws allow courts to avoid these problems and make inheritance laws fair. Because intestacy laws also allow residents to make their own inheritance choices, it falls to each person to make inheritance choices or let the state make them for them. By making an estate plan that includes a valid last will and testament, you can ignore the states intestacy laws completely, and make whatever inheritance choices you desire.
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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.
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