Probate Alternatives Interview Guide

Use this interview guide to discuss probate alternatives with clients.  Remember that this interview guide is intended to cover the topics most likely to be at issue for your client, but may not cover every situation.

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  1. Threshold questions

    2. 1. Threshold questions

    Why do you want to avoid probate?

    Ways to avoid probate include drafting Transfer on Death deed, creating a Payable on Death account, naming a Transferrable on Death beneficiary for stocks, creating a joint tenancy or life estate, adding other owners to assets, and giving away all assets.  Be aware that adding others to an asset could Medical Assistance eligibility.

    Are you married?

    Yes No

    Do you have children? If they are minors, do you have a guardian in mind for them?

    Yes No

    Do you have a will?

    If client has a will, skip to the section “Threshold questions – client has a will.”  If client does not have a will, complete this section.

    Yes No

    If you do not already have a will, would you like to create one?

    Yes No

    Do you want to unequally distribute your estate?

    Yes No

    Do you want to give any of your assets to charity?

    Yes No

    Do you have tangible personal property that you would like to give to certain individuals?

    The client’s will can incorporate a tangible personal property list, which can be changed later without the formalities of the will.

    Yes No

    Client instructions:

    The will must be signed in front of two witnesses, who must also sign the will.  Additional language can be included to strengthen the will.

    File the will with probate court, which will charge you a small fee.  The will be sealed and will not be read until needed in probate court. 

    Keep a copy of the will with your important papers at home.  Do not lock it away in a safe deposit box.

  2. Threshold questions – client has a will

    3. 2. Threshold questions – client has a will

    Complete this section if client has a will.

    Who signed it?

    Who, when, and how many people witnessed your signature? Did they sign?

    Do you have a Personal Representative that will act?

    Yes No

    Do you know where your will is? Is it filed with the Court?

    Has anything major in your life happened since you created the will?

    Yes No

    Has anyone named in the will died?

    Yes No

    Do you think anyone will contest your will?

    Yes No

    Does the will do what you want it to do?

    Yes No

  3. Client has a small estate

    4. 3. Client has a small estate

    Complete this section if client has a small estate.

    What do you own and how is it titled?

    Do you have beneficiaries listed on the assets?

    Yes No

    Do you own real estate in your name only?

    Yes No

    Does your titled personal property total more than $50,000?

    Yes No

    How is your homestead titled?

    Do you have beneficiaries named to the homestead via a Transfer on Death deed?

    Yes No

    If so, has the Transfer on Death deed been registered with the County Recorder's office?

    Yes No

    Is there a joint owner with rights of survivorship, or a remainder interest owner to a life estate?

  4. Health care directives

    5. 4. Health care directives

    A health care directive may be important if the client’s biological family is likely to attempt to ban the client’s significant other.  In addition, consider a health care directive if the client is either not married or is in a second marriage.

    Do you have an advanced directive, like a Health Care Directive?

    If the client answers yes, complete this section.  If the client answers no, skip to the section, “Health care directives – client does not have a health care directive.”

    Yes No

    Have you spoken to loved ones about your wishes during end of life matters?

    Yes No

    Have you designated trusted people who will make sure your wishes are followed if you cannot communicate or understand your healthcare options?

    Yes No

    Does the directive include instructions for resolving disagreements? Who makes the decisions?

    Where is the directive?

    Who did you give the directive to?

    Does the directive do what you want it to do?

    Yes No

    How is the directive signed?

    Do you travel a lot?

    If the client answers yes, instruct the client to carry the health care directive with him/her.

    Yes No

    Do you live in another state for a significant amount of time during the year?

    If the client answers yes, instruct the client to consider drafting a health care directive for that state as well.

    Yes No

  5. Health care directives – client does not have a health care directive

    6. 5. Health care directives – client does not have a health care directive

    Complete this section if the client does not have a health care directive. 

    A health care directive may be important if the client’s biological family is likely to attempt to ban the client’s significant other.  In addition, consider a health care directive if the client is either not married or is in a second marriage.

    Who would be willing to act for you in your healthcare matters?

    Would they have the capacity and strength to stand up for your wishes?

    Yes No

    Would you like to name your spouse and one other adult as your agents?

    Yes No

    Do you want to limit any of the powers?

    Yes No

    Do you have instructions for your agents and healthcare providers?

    Yes No

    What is your main philosophy of what is important to you at the end of life?

    What things bring quality or meaning to your life?

    Do you have opinions about the following: particular treatments, visitation, places to live, healthcare providers, everyday life preferences?

    Client instructions:

    A health care directive does not need to be in a particular form, but it must do two things:  (1) name (an) agent(s) and/or include instructions and (2) be signed in front of a notary public or two witnesses. 

    After completing the directive, bring a copy to your doctor, local hospitals, and agents.

    Keep a copy of the directive at home with other important papers.  Do not lock it away in a safety deposit box.  Keep a record of who has a copy of the directive.  A photocopy of a directive is as valid as the original. 

    To make changes to a health care directive, you will need to create a new health care directive.

  6. Power of attorney

    7. 6. Power of attorney

    Consider a power of attorney if the client is either not married or is in a second marriage. If the client does not have a Power of Attorney, s/he can use a free program on LawHelpMN.org to create one.

    https://www.lawhelpmn.org/resource/power-of-attorney-do-it-yourself

    Do you have a power of attorney?

    Yes No

    If so, are your attorney(s)-in-fact able and willing to act for you?

    Yes No

    If you do not have a power of attorney, do you have someone you trust to handle your finances and property matters if you are unable to?

    Yes No

    Would you like to designate more than one attorney-in-fact?

    Multiple attorneys-in-fact can be either co-attorneys-in-fact or successor attorney(s)-in-fact.

    Yes No

    What powers do you what to share with your attorney(s)-in-fact?

    Do you want to allow your attorney(s)-in-fact to transfer your property to themselves in order to act for you?

    Yes No

    Do you want the power of attorney to remain effective should you become incapacitated or incompetent?

    If the power of attorney remains effective after incapacitation or incompetence, it is a “durable power of attorney.”

    Yes No

    On what schedule do you want your attorney-in-fact to provide you with an accounting?

    Accountings can be provided regularly or only upon the client’s request.

    Did you read the notice to principals on the form and sign the notice?

    Yes No

    Did your attorney-in-fact read the notice to attorney(s)-in-facts and sign the notice?

    Yes No

    Client instructions:

    Bring your power of attorney to a notary public and sign it in front of the notary.

    Your attorney(s)-in-fact do not have to sign it in front of the notary public, but they need to sign the form to provide a “specimen” signature.

    Make more than one original – photocopies sometimes do not work.

    Sign in blue ink so that you know it is an original.

    Show agencies/organizations your original, but have them make a copy. Do not give away your original power of attorney.

    Keep your original power of attorney at home with your important papers.  Do not lock it away in a safety deposit box.

    If you decide you do not want your attorney(s)-in-fact to act for you, you need to sign a Revocation of the Power of Attorney in front of a notary public.  Revocation is complete upon delivery to the attorney(s)-in-fact.  Give copy of the revocation to any organization/agency that may have a copy of the power of attorney.

  7. Apartment affidavit

    8. 7. Apartment affidavit

    Do you live in an apartment?

    If the client answers yes, continue.  If the client answer no, you have completed this interview guide.

    Yes No

    Do you have an apartment affidavit?

    Yes No

    Do you have someone who you want to enter your apartment after you die, in order to handle your affairs?

    Yes No

    Do you have a small estate?

    Yes No

    Client instructions:

    The apartment affidavit will help your landlord feel more comfortable allowing someone into your apartment after your death.  Your landlord may be worried about being sued if someone takes something out of your apartment.  It is your permission for the landlord to let others into your apartment after your death. 

    Sign the apartment affidavit in front of a notary public and give a copy to your landlord.