Planning for tomorrow is challenge enough. Planning for a tomorrow that doesn't include you is particularly troubling for many people.
Some attorneys say almost everyone should have a will. Others say it depends on the situation.
Brainerd attorney Jim Nelson said the difficulty of facing one's own mortality might be one reason people are reluctant to consider preparing wills. A fear the process will be expensive is another roadblock, he said. People have the mistaken notion, he said, that the legal clock will start ticking as soon as they walk in the door,
"I think a lot of people are concerned to come to a lawyer," he said.
If he were to offer advice regarding wills it would be for people to at least make an inquiry about what a will might cost them.
"Don't be afraid to call a lawyer and just ask," he said.
Nelson said each case is different and he didn't necessarily believe everyone needed a will. For those who die without a will the probate system has an established succession designed in the way most people would want their estate to be settled, Nelson said. Subject to certain exceptions, the attorney said, intestate succession laws call for assets to go to a surviving spouse and then to be shared equally among the children if there's no surviving spouse.
Brainerd Dispatch/Nels Norquist
Wills are critical for married couples with an estate exceeding $1 million, he said. Other specific conditions he identified that might indicate one needs a will include:
If you want your estate divided in unequal shares.
If you are in a second marriage with children from both spouses.
If you want to leave money to your church.
If you want to delay distribution of your assets through use of a trust.
If you have specific wishes for the distribution of personal possessions.
Ray Charpentier, an attorney with the Brainerd firm of Charpentier and Lange, offered a different perspective on wills.
Brainerd Dispatch/Steve Kohls
"Almost everybody needs a will," he said. "It distributes their assets the way they want them distributed."
State laws change frequently, Charpentier said, and while the absence of a will might be fine for an individual while current law is in effect, no one from the Legislature is going to individually inform them when a new law changes the legal landscape.
"The will sets up parameters on how to distribute your assets when you die," he said.
Part of an attorney's job is to ask the "what if" question, Charpentier said - the ones that sometimes make people uncomfortable. Wills, he said, are designed to cover contingencies such as unexpected deaths or children born outside of a marriage.
"We have in mind how life is supposed to work," he said. "We think we're gong to die before our kids."
Charpentier said low-cost wills can be done without an attorney's advice but questioned the wisdom of cutting corners and writing a will "on the cheap" when all of your assets are at stake.
When no will exists Nelson said the court will appoint a personal representative who has wide latitude in deciding on whether to conduct an appraisal or proceed with an auction. If that personal representative hires an attorney, Nelson said it must be clear the attorney works for the representative and not for any other siblings.
"It's important for the attorney to make it clear (who he's working for) to the personal representative," he said. "That's the person he represents. It's the attorney's job to give the right advice."
Whether a family takes that advice is another matter.
"You pay for my advice," Charpentier said he tells clients. "If you don't take it that's your choice."
Charpentier joked that law schools should teach psychology courses, which might help lawyers deal with family members and their spouses. Although it's not true all the time, he said there have been cases where siblings get along fine but "put one in-law in the room" and there's trouble.
"Only because they don't have the close relationships siblings have," Charpentier said. "They (siblings) know how it works. It doesn't have to make any sense."
Nelson said the situations in which family conflicts arise are the exceptions to the rule. When it does occur, he doesn't try to play the part of family counselor.
"It's not my job to do that," he said.
MIKE O'ROURKE may be reached at firstname.lastname@example.org or 855-5860.
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