Northland Senior Resource Guide | Page 12

Just Having a Will Doesn’t Avoid Probate Leave it to the experts. by Chris Dahlberg The Family Cabin The family cabin or lake house is more than a valuable family asset; it’s a tradition and a legacy to many Minnesota families. Frequently, clients come to my office asking how they can assure their cabin stays in the hands of family for years to come. There are generally two methods used: a cabin trust or a Limited Liability Company (“LLC”). The most common mistake individuals make in their estate planning is believing the will they executed prevents probate. The major benefit of a will, a very important one, is assuring that the administration of your estate will be conducted according to your unique personal wishes, and not according to the “one-size fits all” as directed by the government. However, your estate will still have to go through probate unless you’ve either made death beneficiary designations on your assets, or created a trust which is administered outside the probate system. With either a ‘cabin trust’ or an LLC, the rules of the cabin can be set during the original owner’s life. There are some important considerations for the future; who will pay the bills, who will make major decisions, and who gets to use the cabin and when. Often, schedules are set in advance. Also, one scheduling option I enjoy seeing is the “floating family time.” This is a time where any and all family members can use the cabin, creating a de facto family reunion every year, long after the original owners have been deceased. Now that’s leaving a legacy! Often, the best way to have your estate avoid the cost of probate is to have transfer on death designations for your various assets. Your home or other real estate can be transferred upon death through the use of a “Transfer on Death Deed”. (see TODD below). Was your Will created before 2008? Transfer on Death Deed (“TODD”) In 2008, Minnesota’s legislature passed a law allowing an owner of real estate to have their real property transferred to beneficiaries upon death. This is done by executing and recording a deed known as a “Transfer on Death Deed“ (TODD). The cabin trust can be a little less flexible. Once the creators (generally parents) die, the trust becomes irrevocable. Future changes become difficult. An LLC allows members (future beneficiaries) to make changes. There are often member restriction agreements allowing beneficiaries to sell their interest but providing family first options to buy. I frequently advise my clients to use TODDs as part of their estate planning. They are a relatively simple, straight-forward method to avoid the cost of probating real estate. Parents, for example, through a TODD, can transfer to their children their home upon death and little more work than providing a death certificate is needed. There are additional costs for a trust or LLC beyond the drafting of a simple will. Yet, to many with a lifetime of family memories around the cabin, it’s worth the investment. Here are the positives I like: • They are relatively inexpensive to draft and record. • They are totally revocable. • Designated beneficiaries have no interest until the owner’s death so creditors or a divorcing spouse of a designated beneficiary cannot latch on to the property during the initial owner’s lifetime. • Your heirs or others (designated beneficiaries) will not have to probate the real estate (generally a home). That will save your estate thousands of dollars. If you had your estate planning done prior to 2008, contact our law office to schedule an appointment to see if a TODD is right for you. 12