Estate Planning in an Emergency – What Can You Do?

by | Apr 14, 2022 | Firm News

2022 Update

There are times in our life when situations arise making it urgent and essential to have a Health Care Directive, Power of Attorney and maybe a Will. This is certainly one of those times, but how do you accomplish this without spending money you do not have and minimizing contact with others? Here is what you might need and how you can get it:

HEALTH CARE DIRECTIVE: A Health Care Directive is a document in which you set out who will make health care decisions for you if you are incapacitated. It also allows you to set out your end-of-life wishes, rather than leaving those hard decisions to hurting loved ones. It can be obtained and completed for free at hospitals, clinics, and the links below. Most Health Care Directives require either two witnesses or a notary. I highly recommend everyone who is 18 years old or older complete this document and provide it to their primary health provider. It can avoid a court action if you become incapacitated.

POWER OF ATTORNEY: A Power of Attorney is a document in which you set out who will take care of your assets and finances if you’re incapacitated. It can be completed for free from the links below. Most Power of Attorney documents require a notary. I highly recommend everyone who is 18 years old or older complete this document and provide a copy to their primary financial institution. It can avoid a court action if you become incapacitated.

WILL: The Will is a document that designates how you want your assets to be divided when you die, but only with respect to the assets that do not transfer automatically at your death. For both Wills and automatic transfers, the decisions you make can have tax, Medicaid and other complications. It’s always recommended that you seek the assistance of an attorney to discuss your estate and wishes if you can. If you are unable to do so, the laws pertaining to writing your own will are set out below.

AUTOMATIC TRANSFERS AT DEATH: You can set up your bank accounts, retirement accounts, CDs, money market accounts, and all your other financial assets to automatically pass to your heirs directly (outside of the Will) by adding a beneficiary or pay-on-death designations to those accounts. You should contact the companies holding those assets for instructions on how to add or change such designations. Additionally, any property you own jointly with others, such as vehicles or land, will pass to the other joint owner automatically at your death.

NORTH DAKOTA RESIDENTS – DOCUMENTS TO PREPARE:

Health Care Directive:  https://www.honoringchoicesnd.org/directives/

Power of Attorney:  https://www.ndcourts.gov/legal-self-help/power-of-attorney

Will: If you are a resident of the State of North Dakota, you can handwrite your own Will and it will be valid without witnesses or a notary. Called a “holographic will”, the Will MUST be in your own handwriting (not typed) and should be dated and signed by you. If you’re concerned about someone contesting your Will at your death, a handwritten or typed Will can be signed before a notary, two witnesses, or both.

MINNESOTA RESIDENTS – DOCUMENTS TO PREPARE:

Power of Attorney and Health Care Directive:          https://www.ag.state.mn.us/Consumer/Handbooks/Probate/default.asp

Health Care Directive – alternate link with the document in several languages: https://www.honoringchoices.org/health-care-directives

Will: If you are a resident of the State of Minnesota, you can handwrite your own Will or type it, but the law requires that it be dated and signed by you in the presence of two witnesses who also sign the Will. The two witnesses are required. The Will doesn’t need to be notarized, but having it notarized can make it harder to contest if you are concerned about someone contesting it at your death. (The special signing laws that were in place during COVID have expired, so at least two witnesses are required in Minnesota).

WITNESSES AND NOTARY INFORMATION:

Anyone over 18 can witness, including relatives, but it’s best to have non-related parties as witnesses if possible. A notary should not be related to you. Many banks have notaries available. Notaries may charge a minimal fee for their services. Getting witnesses and notaries may require that you leave the house and have contact with others. However, there are online services that can provide witnesses and notaries, which would be valid in both states if done in accordance with that state’s laws. For example, it must be done through a video conferencing method so the witnesses and/or notary can watch you sign. If you or someone you know is internet savvy, there are probably instructions online which will walk you through how to get the remote signatures and notary.

MORE ABOUT CREATING A WILL:

Things to consider when making your own Will: If you have a Will that you no longer want, your Will should state that it revokes all prior Wills. If you have minor children, you can designate who you want to care for your children, when you want them to receive money if not at 18 (you can choose any age or combination of ages) and who you want to control their money until they receive it. Do you want anything to go to charity? Is there someone you want to leave out of your will? If so, you could state that you intentionally leave nothing to that person and, if you wish, state why.

Once your Will is complete, you should put it in a safe location and send a copy to someone you trust letting them know where it is. This can be done by taking a picture with your smartphone and sending it via text or email. If you’re not able to send a copy either electronically or by regular mail, at least let the person know about the Will and its location. The important thing is to make sure someone you trust knows that your Will exists and where to find it.

If your assets are over $2.5 million, you should consider talking to an attorney about more complex planning.

WE ARE HERE TO HELP!

By necessity, the above information leaves volumes of other considerations that might apply to you, depending on your situation. If you have questions or would like assistance with your estate planning, the Estate Planning Attorneys at the Vogel Law Firm are here to help. We are available for a one-hour telephone or video consultation for a flat fee of $320.00. If you decide to hire us for your planning, the costs and fees can be discussed during the consultation.

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