My Spouse is Terminally Ill and Has No Will. Is That a Problem in Minnesota?

"My terminally ill spouse has no will, but thinks it's really no big deal." I saw this question recently in an online forum, and it's one of those issues that comes up a lot.

When I'm giving presentations or speaking to groups, we kind of make light of this fact, but if you're married, under the law, most of your assets just automatically go to your spouse at the time of your death. So when people ask me, "Do I have to have an estate plan?" If you're married to somebody and you can guarantee that you are going to die before they pass away, maybe you can get away without an estate plan, because most of your things are going to go directly to your spouse anyway, under operation of law.

But the reality is, life is very uncertain. You never know what's going to happen, and you don't want to bank on that, because what if you get hit by a bus tomorrow, even though you were so sure you were going to die before your spouse?

So in this situation, the question was: "My spouse has an aggressive brain cancer. Three percent of people make it to five years. All of our accounts are either in my name, joint, or in our kids' names. I have an individual bank account and individual investment accounts. He has individual retirement accounts, but his investment account is joint with me. He has one life insurance policy that I know of, and I am the beneficiary. We have a mortgage with both of us on it. We have a one-year-old and a three-year-old. He doesn't have a will, trust, or anything like that. He says everything automatically goes to me. I'm worried that we'll miss something and regret not having a will or a trust set up. Should I just not worry about it?"

So going back to the situation that's been described, I understand where the husband is coming from. He's saying, "I've got a terminal illness, I'm probably going to pass away. When we look at our assets, we see that most of them are joint or in my wife's name, so there's actually not a lot of concern on the estate planning side of things."

What we're missing here is that there could be other accounts or other things out there in his name that he may have forgotten about, or he didn't know about. And by not having any estate plan in place, that means they may have to go through probate court to actually distribute those other assets.

The other option is to use an estate plan, specifically a trust, if we want to stay out of probate court. That way all of this is taken care of, and we can actually use the will as a cleanup mechanism to move assets into the trust if we missed them while we were still alive and didn't put them into the trust.

So I understand where the wife is coming from, and I think she has some valid concerns, because there could be little things that they missed. There could be other accounts out there. As she notes, he only has one life insurance policy that she knows about, and she's listed out certain accounts that she knows about, but there could be others out there. And as those add up, he could be creating a larger and larger estate battle in the probate court, if some of these assets have significant money and we're not sure who they're supposed to be going to.

But on the flip side, for the husband with the terminal cancer, it's a very sad situation, but he's not necessarily wrong. With proper planning on the account side of things, if we make sure things are joint, things have beneficiary designations on them, so he's not the only person on these accounts... The reality is, he's got an estate plan. It's just the de facto estate plan, and most of it goes to his spouse anyway.

If you have more questions, you can hit my website or hit the link below to schedule a Legal Strategy Session. Hit the thumbs-up or like button below, or head over to AyersLawTV.com to catch some future episodes where we talk about more of these issues. These are really interesting issues that you probably haven't thought of. But if you do have that terminally ill spouse and there's no will, it may not actually be a big deal.