A Will governs the distribution of property upon death. The person who has made a Will is known as the Testator (man) or Testatrix (woman). The important people who are named in a Will are:

Executor - the person you appoint in your Will to manage your estate and distribute your assets. The Executor usually hires a lawyer to take responsibility for the legal work involved with Settling the Estate.

Devisees - the people who will take ownership of your real estate.

Legatees - the people who will take ownership of personal property such as your car, furniture, stocks, bonds and bank accounts. Your wishes and your instructions, written in your Will document, govern who will take what property, unless you have made arrangements for joint ownership, transfer on death, or beneficiary designations.

Are your Devisees and Legatees the same people as your closest blood relatives? In many cases they are not the same people. That's one reason that you need a Will.

Without a Will, your estate is considered intestate(without a Testament). The Massachusetts Law of Descent, Distribution and Succession provide the Probate Court with the list of people who will take your property. The share of a surviving spouse is also set by the law. The Massachusetts Probate Code allows a person to nominate a Guardian for his or her spouse, including specifications of any desired limitations on the powers to be granted to the Guardian.

If you do not have a Will, the state laws are the "default" that decide who will receive your property. The heirs to your assets are determined as of the date of your death. To settle an intestate estate, an Administrator must file a petition with the Probate Court to distribute your property. If a parent neglects to write a Will, and leaves a spouse and children, the state law requires distribution of half the estate to the children. This is a problem if your estate includes a small business. Allow time in your busy schedule to prepare a Will and Estate Plan.

Married couples often use simple wills with reciprocal provisions for property distribution. This is known as an "I Love You" Will, because all property passes to the surviving spouse, and then to children or other beneficiaries.

A simple Will can work if family circumstances and business dealings are simple during your lifetime. But it is important to be sure that your Will is not so simple that it fails to consider your special circumstances. Here are some circumstances that require more than a simple "I Love You" Will:

• You don't want your property to automatically pass to children of the beneficiaries who predecease you. A Massachusetts law known as the anti-lapse statute could make that happen, unless you say otherwise.
• You want your beneficiaries to take certain proportions, depending on how much remains in your estate. If your Will leaves an open question about the residuary of the estate, Massachusetts rules of construction will decide the proportions of your residuary bequests.
• You have a family member who has special needs, and you do not want to disqualify that person from receiving government benefits or services. You need a Will that is coordinated with a Trust document that will protect his/her eligibility.
• You want to omit a close family member or child from your Will.
• You want to leave a gift to a friend, a church or a charity. Your bequest must be written in a Will, a Trust, a joint ownership arrangement, or as a beneficiary designation on documents held by a bank or financial institution.
• You want to make provisions for children of a previous marriage, or provide for other circumstances arising from a second marriage and blended family.
• You do not want to create a taxable estate for your spouse or surviving family members.

With a properly drafted Will, and coordinated Trust documents and beneficiary designations, you make the decisions about who gets your property.

Specific clauses for Massachusetts and Connecticut Wills can save precious time and money for your family members. Among the thing you should consider are:

• a clause giving your Executor the power to sell real estate. This simple clause eliminates an extra step, called the "License to Sell Real Property." Without this clause, the Executor must go to the Probate Court and obtain "license" (permission) to sell your real estate. That extra step always adds to the cost of settling your estate. I always ask clients whether they want to avoiding the need for "license" to sell real estate.
• a clause saving your Executor from having to post a surety (money) with the Probate Court. Posting Surety requires a person to either 1) get extra signatures from people who will guarantee he or she properly distributes your property, or 2) pay a premium to an insurance company. Most of my clients want this clause included in their Will documents.
• whether your heirs-at-law include children younger than age 18. The Massachusetts Probate Courts will require that a Guardian ad Litem be appointed and paid with money from the Estate. A Guardian ad Litem is appointed by the Court to make sure that a child or incompetent person receives his/her share of the Estate property. We can often eliminate this requirement for a Guardian ad Litem with appropriate clauses in a Simple Will. This would excuse your Estate from paying for a special Guardian ad Litem to look over the accounts and property distributed to any minor children.
• whether your Will is self-proving. Every will in Massachusetts must be witnessed by two or more witnesses. Since 1978, the Massachusetts Legislature has allowed the Probate Court to accept Wills without the need to take testimony from the witnesses IF the will has already been proven by affidavits of the Testator and the Witnesses. That's what we do in my office whenever we prepare and execute a Will for a client.

These clauses are often left out, or misunderstood in canned documents that are sold without the benefit of professional legal advice.

When it comes to preparation of your Will, you can trust the work of an elder law attorney who takes the time to understand your unique circumstances and wishes.

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