The short answer: every adult in Minnesota needs a will. Not everyone needs a trust. But far more people need a trust than realize it — and the reason comes down to a number that surprises most families.
In Minnesota, if you own $75,000 or more in personal property or any real estate at all, your estate goes through probate when you die. Probate is a court-supervised process that is public, takes 6-12 months, and costs money. A trust avoids it entirely.
That $75,000 threshold is lower than most people expect. Add up your checking and savings accounts, your car, your household belongings, and any investment accounts not already set up with beneficiary designations — you’re probably past it. If you own a home, probate is triggered regardless of the dollar amount.
This guide explains what each document does, when you need one or both, and how to decide based on your actual situation — not a generic flowchart.
What a Will Does (and Doesn’t Do)
A will is a legal document that tells the court three things: who gets your property when you die, who manages the process of distributing it (your personal representative, called an executor in other states), and — if you have minor children — who becomes their guardian.
Minnesota Requirements for a Valid Will
- You must be at least 18 and of sound mind
- The will must be in writing
- You must sign it (or someone must sign at your direction, in your presence)
- Two witnesses must sign the will
- Witnesses can be beneficiaries (Minnesota allows this, though it’s not ideal)
- Minnesota generally does not recognize unwitnessed handwritten (holographic) wills
- Electronic wills are valid since August 2023 under Minn. Stat. § 524.2-520, with the same substantive requirements
What a Will Can Do
Name guardians for minor children. This is the one thing only a will can do. If you have children under 18, a will is where you designate who raises them if both parents die. Without it, a judge makes that decision based on statutory priority — which may not match your wishes.
Direct who inherits your property. You choose who gets what. Without a will, Minnesota’s intestacy laws control distribution — your property goes to your spouse and/or closest relatives by a formula you don’t get to influence.
Name your personal representative. You choose who manages your estate. Without a will, the court appoints someone — usually your closest relative, whether or not they’re the right person for the job.
Create testamentary trusts. You can create a trust within your will that takes effect at your death — useful for managing assets left to minor children or beneficiaries who shouldn’t receive a lump sum.
What a Will Cannot Do
Avoid probate. This is the critical limitation. A will does not bypass the court system. It tells the probate court what to do, but the court process still happens. Every asset controlled by your will goes through probate — with the associated time, cost, and public disclosure.
Protect you during incapacity. A will only takes effect when you die. If you’re alive but incapacitated (stroke, dementia, severe illness), a will does nothing. Your family would need to go through a court guardianship or conservatorship proceeding to manage your affairs — unless you have a trust and power of attorney in place.
Keep your affairs private. Probate records are public. Anyone can look up what you owned, what you owed, and who got what. For some families, this lack of privacy is a significant concern.
What a Trust Does
A trust is a legal entity that holds your assets and manages them according to your instructions — during your life, during any period of incapacity, and after your death. You create the trust, transfer assets into it (called “funding”), and typically serve as your own trustee while you’re alive and capable. When you can’t manage things anymore — whether due to incapacity or death — your successor trustee takes over seamlessly, without court involvement.
Revocable Living Trust (Most Common)
The revocable living trust is the workhorse of Minnesota estate planning. It’s the type most families use, and the type that avoids probate.
Key features:
- You retain full control while you’re alive — you can change it, revoke it, add or remove assets at any time
- You serve as your own trustee — nothing changes about how you manage your money day to day
- Assets in the trust pass to your beneficiaries without probate — your successor trustee distributes them according to the trust document
- The trust handles incapacity — if you can’t manage your affairs, your successor trustee steps in without court involvement
- Trust administration is private — no public court records
The essential step most people skip: A trust only works if it’s funded — meaning your assets are actually retitled in the name of the trust. Your bank accounts, investment accounts, and real estate deeds all need to reflect trust ownership. A trust document sitting in a drawer with your house still titled in your personal name does not avoid probate for that house. This is the single most common failure point in trust-based estate planning.
Irrevocable Trust
An irrevocable trust cannot be changed or revoked once created. You give up control of the assets — which is precisely why they’re removed from your taxable estate. Irrevocable trusts are used for:
- Estate tax planning — assets in an irrevocable trust aren’t counted toward your estate for Minnesota’s $3 million estate tax threshold
- Asset protection — assets are shielded from creditors and lawsuits
- Medicaid planning — assets can be protected from long-term care recovery (subject to the 5-year lookback)
- Life insurance — an irrevocable life insurance trust (ILIT) keeps life insurance proceeds out of your taxable estate
Irrevocable trusts are a planning tool for specific situations, not a default recommendation. Most families start with a revocable living trust and add irrevocable structures only when their estate approaches or exceeds the tax threshold.
The Side-by-Side Comparison
The table below puts both options side by side across the factors that matter most to Minnesota families: probate exposure, privacy, incapacity protection, flexibility, and cost. The cost figures reflect typical attorney fees for document preparation — what you actually pay depends on the complexity of your estate and the attorney you work with. For a full breakdown of what each option runs in Minnesota, including what drives prices up or down, see our guide on how much estate planning costs in Minnesota.
| Feature | Will | Revocable Living Trust |
| Avoids probate | No | Yes (if properly funded) |
| Takes effect | Only at death | Immediately upon creation |
| Handles incapacity | No | Yes — successor trustee steps in |
| Privacy | No — probate is public | Yes — trust administration is private |
| Guardians for minor children | Yes — only a will can do this | No — need a will for guardians |
| Typical cost (individual) | $800 – $1,500 | $2,500 – $5,000 (includes pour-over will, POA, healthcare directive) |
| Typical cost (married couple) | $1,200 – $2,500 | $3,500 – $7,000 |
| Ongoing maintenance | None | Must keep funded — retitle new assets |
| Court involvement at death | Yes — probate court | No — trustee distributes directly |
| Can be changed | Yes — via codicil or new will | Yes — revocable means changeable |
| Protects from estate tax | No | No (revocable). Yes (irrevocable). |
| Timeline after death | 6-12 months (probate) | Weeks to a few months |
When a Will Is Enough
A will-based plan (will + healthcare directive + financial power of attorney) may be sufficient when:
- Your total assets are under $75,000 in personal property and you don’t own real estate (probate may be avoidable via small estate affidavit)
- Most of your assets already pass outside of probate through beneficiary designations (retirement accounts, life insurance, POD/TOD accounts)
- You’re young with minimal assets and just need guardianship designations for children
- You’re comfortable with the probate process and the public nature of the records
- Cost is a primary concern and a trust isn’t financially justified yet
Even in these situations, you still need the healthcare directive and power of attorney. A will alone is an incomplete plan.
When You Need a Trust
A trust-based plan makes sense — and often pays for itself — when any of these apply:
You own real estate in Minnesota. Any real property triggers probate. A trust avoids this entirely. If you own your home, this alone usually justifies a trust.
You own property in more than one state. Without a trust, your family would need to open probate proceedings in every state where you own real estate. A trust eliminates all of them.
Your estate approaches or exceeds $3 million. Minnesota’s estate tax exemption is $3 million per person — and it’s not portable between spouses. Without proper trust planning (credit shelter trust / bypass trust), a married couple can only shelter $3 million instead of $6 million. This single planning strategy can save families hundreds of thousands of dollars in estate taxes.
You want to avoid probate. Probate costs, delays, and public records are the most common reasons families choose trusts. In Minnesota, probate can take 6-12 months and costs vary — but the time alone is often the bigger burden, especially when beneficiaries need access to accounts to pay bills, maintain property, or handle the deceased’s affairs.
You have a blended family. If you have children from a prior relationship, a trust can ensure that your current spouse is provided for during their lifetime while preserving the remaining assets for your children — rather than everything going to the spouse outright (which risks your children being disinherited if the spouse remarries or changes their own estate plan).
You have a beneficiary who shouldn’t receive a lump sum. A trust can distribute assets over time, at specific ages, or upon specific conditions (graduating college, for example). This is valuable for beneficiaries who are minors, have substance abuse issues, are in unstable marriages, or are financially irresponsible.
You have a family member with special needs. A special needs trust provides supplemental support without disqualifying the beneficiary from Medicaid, SSI, or other government benefits. Leaving an inheritance directly to someone receiving benefits can cause them to lose those benefits.
You want incapacity protection. If you become incapacitated without a trust, your family may need to petition for a court conservatorship to manage your finances — a process that’s expensive, public, and slow. A trust with a successor trustee handles this seamlessly.
You value privacy. Trust administration is not a public record. Probate is. If you don’t want the world to know what you owned and who got what, a trust provides that privacy.
The Best Approach: Both
For most Minnesota families with any assets of substance, the right answer isn’t “will or trust” — it’s both, working together.
The typical comprehensive plan includes:
- Revocable living trust — holds your assets, avoids probate, handles incapacity, provides privacy
- Pour-over will — catches any assets not already in the trust and directs them into it at death (these assets do go through probate, but the trust controls distribution)
- Financial power of attorney — handles any financial matters not covered by the trust
- Healthcare directive — names your healthcare agent and records your medical treatment preferences
- Beneficiary designation review — ensures retirement accounts, life insurance, and TOD/POD accounts align with your overall plan
This package typically costs $2,500-$5,000 for an individual and $3,500-$7,000 for a married couple. Compared to the cost of probate, the loss of a spouse’s $3 million estate tax exemption, or a court-appointed conservatorship — the trust-based plan almost always pays for itself.
The Minnesota-Specific Factors That Matter
Several aspects of Minnesota law make the will-vs.-trust decision different here than in other states:
The $75,000 probate threshold is low. Many states have higher thresholds. Minnesota’s relatively low number means most adults with any savings will trigger probate without a trust.
The $3 million estate tax threshold is low. The federal exemption is $15 million. Minnesota’s $3 million threshold catches families who don’t consider themselves wealthy — a home, retirement accounts, and a life insurance policy can easily exceed it. Without credit shelter trust planning, married couples lose one spouse’s entire exemption.
No portability for Minnesota estate tax. Unlike the federal system, Minnesota does not allow a surviving spouse to use the deceased spouse’s unused exemption. This makes trust-based tax planning essential for married couples with combined assets over $3 million.
Minnesota recognizes Transfer on Death Deeds. A TODD can pass real property without probate — but it doesn’t provide incapacity protection, privacy, or the tax planning benefits of a trust. It’s a useful tool for simple situations but not a substitute for comprehensive planning.
500-year trust duration. Minnesota recently extended the maximum trust duration to 500 years (from about 90). This is significant for families who want multi-generational asset protection for farmland, businesses, or investment portfolios.
Talk to an Estate Planning Attorney
The will-vs.-trust decision depends on your specific situation — your assets, your family structure, your goals, and your tolerance for court involvement. A conversation with an experienced Minnesota estate planning attorney can clarify which approach makes sense and what it will cost.
At Leverson Budke, Steven Budke brings deep experience in both estate planning and criminal defense — a unique combination that gives our clients practical guidance across both practice areas. Whether you need a straightforward will or a comprehensive trust-based plan, we can help.
Frequently Asked Questions
1. Do I need both a will and a trust in Minnesota?
In most cases, yes. The trust holds your assets and avoids probate. A pour-over will catches anything not in the trust and directs it there. A will is also the only document that can name guardians for minor children.
2. How much does a trust cost in Minnesota?
A revocable living trust as part of a comprehensive estate plan typically costs $2,500-$5,000 for an individual and $3,500-$7,000 for a married couple. This usually includes the trust, a pour-over will, power of attorney, and healthcare directive.
3. Does a will avoid probate in Minnesota?
No. A will directs how probate is conducted but does not avoid it. Any asset controlled by a will goes through the probate court. Only a properly funded trust, beneficiary designations, and other non-probate transfer mechanisms avoid probate.
4. What is the probate threshold in Minnesota?
Probate is triggered when someone dies with $75,000 or more in personal property or any real estate titled in their name alone. If the estate is under $75,000 in personal property with no real estate, heirs may use a small estate affidavit instead.
5. Can I avoid Minnesota estate tax with a trust?
A revocable trust alone does not reduce estate taxes — the assets are still part of your taxable estate. However, a credit shelter trust (bypass trust) can preserve both spouses’ $3 million exemptions, potentially sheltering $6 million instead of $3 million. Irrevocable trusts can remove assets from your taxable estate entirely.
6. What happens if I have a trust but forget to fund it?
An unfunded trust is essentially worthless for probate avoidance. Assets still titled in your personal name at death go through probate, even if the trust document exists. The pour-over will catches these assets and directs them into the trust — but the pour-over will itself goes through probate, defeating the purpose.
7. Is a will enough if I own a house in Minnesota?
Owning any real property triggers probate in Minnesota regardless of the value. If you want to avoid probate for your home, you need either a revocable living trust (most comprehensive) or a Transfer on Death Deed (simpler but with limitations).
8. Can I create my own will or trust without a lawyer?
Minnesota law doesn’t require an attorney for either document. However, the formalities are strict — two witnesses for a will, proper funding for a trust — and the consequences of mistakes can be severe. An improperly executed will may be invalid. An unfunded trust won’t avoid probate. The cost of professional preparation by a wills and trusts attorney is almost always justified.
