Probate & Trust Law Section Conference Manual ... - Minnesota CLE

for many of the same reasons as a will would be challenged: lack of
capacity, mistake, undue influence and fraud. To be on the safe side, a
challenger would also allege lack of capacity, mistake, undue influence
fraud, and any of the other grounds for challenging the validity of a deed.
In either case, the presumption of capacity would have to be overcome by
the challenger.
Authority: None provided by the statute.
F. SUCCESSOR BENEFICIARIES
Can you designate back-up beneficiaries in case the primary beneficary
dies before the Grantor Owner?
Like a trust, a TODD may contain a series of contingent successor
beneficiaries to provide for the possibility that several of the named
beneficiaries may not survive the Grantor Owner. When a Grantor Owner
executes a TODD, the Grantor Owner should consider whether to name
one or more contingent successor beneficiaries, particularly in situations in
which the death of a beneficiary before the Grantor Owner may cause a
disruption in the owner’s estate plan.
The statute provides that the TODD shall state the condition under which
the interest of the successor grantee beneficiaries would vest. The authors
believe that any condition other than the death of the primary beneficiary
would require a court action to determine whether the condition has been
met.
Authority: Minn. Stat. § 507.071, Subd. 5.
See also Section III.J., DEATH OF BENEFICIARY, below, regarding
what happens if no successor beneficiaries are named and the designated
Grantee Beneficiary predeceases the Grantor Beneficiary.
PRACTICE TIP: When a client wants to name more than a small
number of multiple Grantee Beneficiaries, and provisions must be made
for Successor Beneficiaries to avoid the anti-lapse issues raised in Section
III.J, below, a simple Will in Probate or a Living Trust might be preferable
to a TODD. A TODD works best in simple situations. Complicated
situations or the prospect of complicated situations are best handled in
probate or other probate-avoidance techniques.
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