Can you just cross out the parts in an old will and write in what you want now?

Once you do a will, circumstances can change. The person you wanted to be your executor twenty years ago (we now call it personal representative) may not be the person you want to do it today. You may want to change who gets your estate or you may have sold land you described in your will. There are many reasons you might need to change your will. However, you can’t just scratch out the old stuff and write in the new. Under Minnesota Statute, wills must be signed and witnessed by two people. It’s also preferable that the two witnesses not have an interest in the provisions of your will. In order to ensure clarity in making changes and to ensure that will requirements are followed, any changes you make should be done through a document that the probate court and estate planners call a codicil. A codicil is a document that formally amends a will and follows the formalities, such as signing and having two witnesses, of a will. If you do a codicil, you should store it in the same place as your original will, so both will be located and filed with the court. If it’s been a while since you did your will, you should speak with a licensed attorney who can help you make sure you amend it properly, so that your estate plan meets your needs now.

More on E-estates and State Legislation

This morning, I heard an interesting report on how state legislatures are attempting to address how social media and other internet accounts are administered after the owner's death. Oklahoma, for instance, passed legislation that included powers to administer these account in the powers that personal representative have to administer estates.

Here's the link: http://www.npr.org/blogs/alltechconsidered/2012/04/03/149875008/who-has-the-right-to-our-facebook-accounts-once-we-die

Here's more on e-estates. http://minnesotaestateplanningandprobate.blogspot.com/2010/02/dealing-with-your-e-estate.html

Balancing Gifts from your Estate Amid Soaring Farmland Prices

For those of us in the upper Midwest, the news that prices for farmland are soaring isn't new. The Des Moines Register had a great article recently about how soaring prices are affecting gifts of family farmland. http://www.desmoinesregister.com/article/20120115/NEWS/301150059/-1/CAROUSEL/As-farmland-prices-soar-will-family-farms-survive-

The article rightly points out that, without proper planning, chaos can ensue if not all children are part of the farming operation. Soaring prices have greatly complicated things as it increases the burden on the farming children to compensate the others to get control of all of the land. There are some ways to address this issue. Giving the farmland to the farming children in your will while taking out life insurance to pay out to the others is one option. Another option is to place the land and operation in a qualifying entity that will control the land and fairly disperse proceeds. If you have a family farm, consider meeting with an attorney licensed in your state to do what you can now to keep the family farm going after you pass away.

Minnesota Estate Planning and Probate named an MSBA Top 25 Blawg of 2011! Thank you Minnesota Bar Association! Check out the link for more honorees. http://practiceblawg.com/top25/2011-selections/

Considerations in Naming a Non-Citizen as Your Child's Guardian

Naming a guardian can be one of the most important parts of your estate plan. With increasing movement between countries, the person you trust most to raise your child in your absence might be a non-citizen. What, if any, additional concerns does that raise?

1. Will a court agree?
Naming a guardian in a will lets a probate or family court know what your wishes are as to who should care for your child. In any case, a Minnesota court is going to look at the best interests of the child. Your choice will be a weighty consideration for a judge. They will balance any other issues the citizenship status of your named guardian raises.

2. Will and should your child be as mobile as their guardian?
The lack of US citizenship ultimately means that either your guardian does not live in the United States or there is a chance that they may not be able to renew their residency. Should that occur, will it be possible for your child reside in the guardian's home country? Is that desirable? These questions should be considered before deciding on a guardian. You should also factor the cost of your child's possible immigration into your life insurance.

3. Should your guardian be the trustee of your child's trust?
Most estate plans for parents with minor children include a trust. Most of those parents name the guardian as the trustee for that trust. That normally makes sense. If you trust someone enough to raise your child, you trust them enough to control your child's finances. However, current IRS rules place a heavy burden on trusts that benefit US citizens, but are controlled by non-citizens. Will your named guardian be savvy enough to deal with burdensome IRS reporting regulations or do you need to make other plans? Additionally, if your guardian resides abroad, being a trustee may create tax implications in their own country.

If the person you most trust to raise your child is not a US citizen, there are many additional issues to consider. While ultimately you may still want to name them as your child's guardian, you want to address any issues their citizenship status creates.

Brouhaha Over Paterno Transfer

Among all of the legal brouhaha the Penn State scandal has raised, there was one going around estate planning circles this month. In July, Joe Paterno transferred the home to his wife for $1. Journalists speculated whether this was to shield assets, therefore an indication that perhaps the coach knew that a scandal might be on the horizon.

Many Pennsylvania attorneys who practice in civil litigation quickly ended this theory, pointing out that Pennsylvania law already exempts the home from judgments. There was really no need to protect the home from creditors. So what's going on?

A simple transfer to a spouse doesn't have great estate planning consequences, unless one is having health issues and such a transfer could prevent control issues from arising or if the transfer is made to a spouse as trustee of a trust. Both appear to the the case. The New York Times had a great discussion of how a transfer to a spouse as trustee of a trust can have great tax benefits. In the end, there really isn't much to have a brouhaha about.

How to get an EIN.

So, you've been named a personal representative of an estate. You've found the will, met with an attorney, had them file the paperwork with the court and received your letters testamentary. You've gone to the bank to set up an account for the estate and the bank asks for an EIN number. What the heck? First of all, an EIN number, or "employer identification number" is the equivalent of social security numbers for entities, like businesses or estates. Obtaining an EIN number is free, easy and fast. The Internal Revenue Service issues EINs online at http://www.irs.gov/businesses/small/article/0,,id=102767,00.html . Upon entering the requested information, including the social security number of the decedent and your own social security number, you'll immediately be issued an EIN. Once you receive the EIN, let your probate attorney know and give them the number for their records. Unlike a lot of things with probate, this is an issue that can be resolved immediately and at no cost.