Duluth, MN asked in Estate Planning for Minnesota

Q: What takes precedence at death, the will or the papers from financial planning?

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2 Lawyer Answers
Kenneth V Zichi
Kenneth V Zichi
  • Estate Planning Lawyer
  • Fowlerville, MI

A: Depends on what those 'papers' are. A beneficiary designation for a specific account? Then it is what controls.

Notes from a discussion? That means little.

To provide a real answer however, you're going to need to speak with a local attorney who can read EVERYTHING and make a judgment about what controls.

--This answer is provided for informational purposes only and does not create an attorney - client relationship. If you need legal advice you should consult with a local attorney. I am licensed to practice in Michigan only.

Scott Maki
Scott Maki
  • Estate Planning Lawyer
  • Moorhead, MN
  • Licensed in Minnesota

A: It depends on the asset. Here are some examples:

-If the person created a Trust as part of their financial plan, the Trust controls all assets named in the Trust.

-If a Trust was NOT created then:

--If there was real estate, then MN REQUIRES the Will to go through probate if it was either in his/her name alone or as a "tenant in common" with someone else.

--If the financial papers did things known as Probate Avoidance techniques, then the financial papers; such as:

----Name beneficiaries on bank accounts - also know as Payable On Death (POD) designations (POD)

----Name beneficiaries on Life Insurance

----Name beneficiaries on retirement accounts

--Probate Avoidance is exactly that - it allows assets to be transferred to beneficiaries without using the Will

--If the person was married, the surviving spouse is entitled to share of the estate REGARDLESS of what is in a Will, known as a Spousal Elective Share (the % is based on length of marriage)

It is not uncommon for someone to give assets in their Will, but because of their chosen Probate Avoidance techniques, how they title their real estate, and the Elective Share, for there to actually be nothing left to pass via a Will.

So the answer depends on what the assets are and what the "papers from financial planning" are and what they say.

Best of luck!

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