Want it to stay in the family?  Many answer YES!  Ask yourself what will happen to the family fun property where the children and grandchildren now spend time together?  Will it need to be sold if health care, assisted living or nursing home expenses clean you out?  Will children disagree about its use, or worse, its sale after you pass on?  Will estate taxes, a child’s divorce or financial instability prevent the family from carrying on this family tradition?  

If you and your children and grandchildren value the experience, shouldn’t you plan to protect this unique “family asst?”  How, you may ask?  Many families turn to a Trust, some to a Life Estate, other a Limited Liability company or a tenancy agreement (or some combination) to protect this cherished asset.  

These legal techniques can be the difference between whether your cabin, hunting/recreational property leaves the family or can carry on after death for a generation or more as a cherished and lasting legacy and tribute to the hard work and successes you provided and enjoyed with family during your lifetime.

In these legal documents you may outline who and how will the rules be set,  what happens if family members can’t agree, when and how much to spend to repair or make improvements,  what if someone wants out, what price and what payment plan can be used for other family members to be are able to buy them out.

The usual context for the question above relates to custody litigation which can occur in family situations where a child’s parents are not raising their child or children together.   When parents who are not living together cannot agree on how to raise their children, the court can be involved.  Courts make decisions about custody of minor children in Minnesota based on the best interests of the child involved. 

There is no law in Minnesota that sets an age when a minor child can decide where they want to live.  There are thirteen factors listed in our custody statute which the court considers to decide the child’s best interests.  The child’s opinion is only one of the thirteen factors the court is to consider. 

Specifically, the law says that the court can consider “the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference”.  There are two important parts of this statement: one, the preference  must be reasonable; and two, the child must be of sufficient age.  All children are different and mature at different rates.  Therefore, Minnesota law allows the courts to determine in each case whether the child involved is old enough to express a preference and whether that preference is reasonable so that it should determine where the child will live. 

Imagine you own a house in town, or a place in the country, or even a farm. You go to the lawyer and make a will. It says you want your spouse or the kids (if the spouse is not living) to get the house or other land. After paying the lawyer $300-400, you leave thinking all is well. But is it?

When asked, most people with this “simple” will think their house or land is automatically transferred to their heirs on death. This is not always true.

Assuming your house is owned in joint tenancy, the surviving spouse gets it with little effort or expense. That’s the good news.

The bad news comes when that surviving spouse dies. Then, the will is simply a key to the courthouse, because a simple will must be probated. This means hiring a lawyer, filing lots of papers, and then waiting for 12 to 18 months or more for the court to issue an order transferring the house or land to the kids. This process is expensive, on average costing at least $3,000 to $7,000 and oftentimes a lot more than that.

Knowing this, do you feel a “simple” will is really simple? What started out costing a couple hundred dollars really cost several thousand dollars instead.

Bottom line is that more often than not, a simple will may not be good estate planning.

For more information, call our office at 507.354.2161 to sign up for a free Estate Planning Workshop to get the facts about whether a “simple” will is REALLY simple.