If you’re a lawyer, yes. If you’re not a lawyer, no.
Except when dire emergency prevents the calling of a lawyer, no layperson may draft another’s will. Gardner v. Conway, 48 N.W.2d 788, 797 (Minn. 1951).
In Minnesota, drafting a will for another person counts as the unauthorized practice of law.
Except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, it is unlawful for any person to prepare legal documents for another person, to perform legal services for another person, or to prepare for another person “any will or testamentary disposition or instrument of trust serving purposes similar to those of a will.” Minn. Stat. § 481.02, subd. 1.
Section 481.02 does not prohibit drafting certain documents, “except another’s will or testamentary disposition or instrument of trust serving purposes similar to those of a will.” Minn. Stat. § 481.02, subd. 3(1). Section 481.02 does not, however, prohibit drafting a will for another person in an emergency if the imminence of death leaves insufficient time to have it drawn and its execution supervised by a licensed attorney-at-law. Minn. Stat. § 481.02, subd. 3(2).
Drafting a will for another person and without a license to practice law is a misdemeanor punishable by “a sentence of not more than 90 days or a fine of not more than $1,000, or both . . . .” Minn. Stat. §§ 481.02, subd. 8(a); 609.02, subd. 3.
Why can’t you draft a will for another person in Minnesota?
Because you don’t know what you don’t know.
In Minnesota, wills require certain formalities, such as two witnesses. Missing a formality can invalidate a will. Some formalities aren’t required, but make it easier to probate the will.
Estate planning requires considering all possible contingencies. Some are easy to miss. An experienced estate-planning attorney can look at the entire estate plan and asset structure and account for all contingencies.
Estate planning requires considering all assets. Some are very easy to forget and often missed. Some may require extra steps, such as property in other states. An experienced estate-planning attorney knows what kinds of assets to check and account for, such as after-acquired assets.
Non-lawyers sometimes add instructions to wills that are legally impossible to do. Experienced estate-planning attorneys know what’s possible and what isn’t.
A will is important. Even with good intentions, trying to save someone some money by drafting a will for them might cause more problems than it solves and cost more money than it saves.
Unless you’re a lawyer, drafting a will for someone else in Minnesota is a crime. Don’t do it. Take them to an experienced estate-planning attorney. If you want to contest a will drafted by a non-lawyer, consult an experienced elder law litigation attorney.
Can I Draft a Will for Myself?
You can. You shouldn’t, but you can. It might be a bad idea, but it’s not a crime. It’s a crime only if you draft a will for another person.
Can I Help Someone Else Draft Their Own Will?
That’s a fine line. Are you merely going to hand them a pen and piece of paper, or go online and make the decision about which of the many wills available online to print for them? Are you going to imply that the will you’re providing will be enforceable in Minnesota? Are you going to explain the difference between probate assets that will be affected by the will and nonprobate assets that won’t be affected by the will?
If you don’t find a will that will work in Minnesota and you don’t clearly explain which assets it will affect and which ones it won’t, then you’re doing the person you’re trying to help a disservice. If you do these things and you’re not a lawyer, you might be committing a crime. Don’t do it.
If you want to help someone who wants to prepare a will in Minnesota, find them an experienced estate-planning attorney. A do-it-yourself attitude is great for many things. Estate planning isn’t one of them. It’s too important and more difficult than it seems. If you want to help them, find them the right attorney. Don’t draft a will for them. For good reason, that’s a crime.