Wills Frequently Asked Questions

A Last Will and Testament is a legal document that is used to express an individual’s wishes with regard to his/her estate assets and what should be done with them upon the Testator’s (creator of the Will) death. Gifts made in a Will may be general or specific and may be made to as many different beneficiaries as the Testator wishes. Along with serving as a vehicle for making gifts of estate assets, a Will is the only opportunity the parent of a minor child has to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed.

People offer all sorts of explanations for why they have yet to create even the most basic estate plan. The simple truth is that every adult can benefit from having an estate plan in place, without regard to age, marital status, or net worth. At a bare minimum, executing a Will ensures that the State of North Dakota will not determine what happens to your estate assets and will avoid the possibility of expensive – and potentially destructive – litigation after your death.

If you die without a Will in place you will leave behind an “intestate” estate. If you die intestate, the State of North Dakota (or the state where you reside at the time of your death) decides how your estate assets are distributed using the North Dakota intestate succession laws. Usually, this means that only close relatives will inherit from the estate in most cases. You also give up the ability to decide who oversees the administration of your estate when you die intestate.

This is a very common mistake people make. In today’s electronic age, it is easy to find just about any DIY legal form you might need. Although it is understandable that you might see an opportunity to save time and money by using one of these forms, the reality is that you are more likely to cost your loved ones a considerable amount of unnecessary time and money when it comes time to probate your estate. DIY Will forms are notorious for having mistakes, errors, and omissions that lead to protracted litigation during the probate of an estate. Your Last Will and Testament is something you want done right – the first time. To make sure that is the case, work with an experienced estate planning attorney during the creation and execution of your Will.

One of the most common mistakes people make when creating a Will is to simply appoint a spouse, friend, or family member as the Executor of the Will without giving any real consideration to whether the individual is the best person for the job. The Executor of a Will has a number of duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background.

This is something that can truly only be decided after consulting with an experienced estate planning attorney; however, there are some common considerations when deciding whether a Will or a trust should be used. If your estate is small enough to qualify for small estate administration, and you do not have minor children (nor plan to have any in the near future), a Will should suffice. If, however, your estate is large enough that probate avoidance is a consideration and/or you do have minor children who will inherit from your estate, a trust is often the better choice to distribute your estate.

When a Will is submitted to probate, any interested party has the right to contest the validity of the Will using one of several allowable legal grounds. Contrary to what you may have been led to believe, one of your heirs or beneficiaries cannot contest a Will simply because they are unhappy with the inheritance left to them (or lack thereof). Instead, a Will contest must allege, and eventually prove, a legal reason why the Will is invalid. The Executor of the Will must defend the Will during the litigation. Ultimately, if the Will is declared invalid, the court will look for a previous, valid, Will to use to probate the estate. If none is located, the North Dakota intestate succession laws will be used to distribute the estate. If the Will is upheld, the probate of the estate continues using that Will.

A Living Will is a type of advance directive. An advance directive is a legal document that allows you to make end of life healthcare decisions ahead of time. In the case of a Living Will, referred to as “Health Care Instructions” in North Dakota, you have the ability to decide now whether or not you wish to certain types of receive medical treatment, such as artificial nutrition or hydration, in the event that you are unable to express your wishes at some point down the road.