12 Important Reasons to Prepare a Will Tailored to Your Specific Circumstances
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 or Personal Representative - the person you appoint in your Will to manage your estate and distribute your assets. The Personal Representative can hire an attorney to take responsibility for the legal work involved with Settling the Estate.
Devisees - the people who will take ownership of assets in your estate. Are your Devisees 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.
A simple Will can work for you if your family circumstances and business dealings are simple during your lifetime.
Choosing a Personal Representative
Planning the Powers of a Personal Representative
It is important to be sure that your Will is not so simple that it fails to consider your special circumstances. Many clauses that can help your family are missing from canned documents or misunderstood by people who buy documents online. When it comes to preparation of your Will, consider an elder law attorney who takes the time to understand your unique circumstances. Here are some of the reasons why you may want more than a simple Will:
1. You don't want your property to automatically pass to children of the beneficiaries who predecease you. Sections of the Massachusetts Uniform Probate Code, known as anti-lapse provisions, could make that happen, unless you say otherwise.
2. 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.
3. You have a child or other 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.
4. You want to omit a close family member, or child, from your Will.
5. 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.
6. You want to make provisions for children of a previous marriage, or provide for other circumstances arising from a second marriage and blended family.
7. You do not want to create a taxable estate for your spouse or surviving family members.
8. With a properly drafted Will, and coordinated Trust documents and beneficiary designations, you make the decisions about who gets your property.
9. You own real estate. A clause giving your Personal Representative the power to sell real estate is needed. This simple clause eliminates an extra step, called the "License to Sell Real Property." Without this clause, the Personal Representative must go to the Probate Court and obtain permission to sell real estate.
10. You want to save your Personal Representative from having to post a surety with the Probate Court. Posting Surety requires a person to either get extra signatures from people who will guarantee he or she properly distributes your property, or pay a premium to an insurance company.
11. You have heir-at-law who are children younger than age 18. The Massachusetts Probate Courts may require that a Guardian ad Litem be appointed and paid with money from the Estate.
12. You want to designate the Guardian for your surviving spouse, using Massachusetts Uniform Probate Code section 5-305(1).
Without a Will, your estate is considered intestate (without a Testament), and state laws will divide your estate:
Old Laws - Repealed
Mass. Probate Code
Eff. April 2012
|Share of Surviving Spouse|
|Massachusetts Law of Descent, Distribution and Succession|
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.
If a parent neglects to write a Will, and leaves a spouse and children, the state law requires that children receive partial distribution. This is a problem, especially if your estate includes a small business. If you do not have a Will, these state laws are the "default" that decide who will receive your property.
Finally, you want your Will to be 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 two witnesses IF the will has already been proven by affidavits of the Testator and the Witnesses.
More on the next page.