Estate Planning Information
WHAT IS A LAST WILL AND TESTAMENT?
A Will is, in essence, your last words to inform your loved ones of your last desires. The will is a document that spells out the final distribution of a person’s property including who will receive property and in what share or amount. This may also include such things as designating burial requests, guardianship over children, distributions of your property, and how any debts are to be paid. Persons naturally entitled to a share of the estate under the laws of the Commonwealth (a.k.a. Intestate Succession) may be specifically disinherited in a will. Another often overlooked use of a will is the distribution of anatomical gifts, known as body and tissue donations.
WHAT HAPPENS IF YOU DIE WITHOUT A WILL?
If a person fails to dispose of all or a portion of their estate by a valid will or trust, then their property is distributed under the rules of intestacy.
In Massachusetts, if you are married and you die without a Will, what your spouse gets depends on whether you have living parents or descendants. If you don’t, then your spouse inherits all your intestate property. If you do, they and your spouse will share your intestate property in varying amounts.
If you die without a Will in Massachusetts, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have, whether you are married, whether your children are also the children of your spouse, and whether your spouse has any children from a previous relationship.
WHAT IS PROBATE AND HOW IS IT AFFECTED BY HAVING OR NOT HAVING A WILL?
In easiest-to-understand terms, probate is simply the legal procedure your estate goes through after you pass away. Probate is a court-supervised proceeding that authenticates your Will (if you have one) and approves your named Personal Representative (sometimes referred to as an Executor) so he or she can distribute your property and belongings.
During the probate process, your assets will be located and assessed for the total value. Once that is done, taxes and debts are paid, and the remaining value of the estate is distributed.
Probate is always easier if you have a Will and/or Living Trust that clearly defines your wishes.
WHAT HAS TO GO THROUGH PROBATE COURT?
If you do not have a Will, everything you own will go through probate court. The following will always go through the process, regardless of what your Estate Planning states:
- If a named beneficiary passes away before you do and you fail to update your Will, the courts will become involved in deciding how to settle this part of your estate.
- Non-titled property is anything you own that doesn’t have paperwork. Household items such as appliances, clothing, furniture, and other general items fall into this category.
- Partner-owned investment property
- Property that’s titled solely in your name will go through probate to determine ownership.
WHAT DOES NOT HAVE TO GO THROUGH PROBATE COURT?
Certain assets and property will not go through probate. By properly planning, you can help avoid probate for any of the following.
- Naming a Beneficiary on an asset can avoid probate. For example, life insurance policies have named Beneficiaries, proceeds go directly to them without having to go through probate.
- POD (payable on death) or TOD (transfer on death) designated items: When you title property and assets such as bank accounts, real estate, retirement accounts, stocks, and vehicles with “POD” and “TOD,” you can bypass probate and pay or transfer items directly to your Beneficiary. For example, in Massachusetts, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit.
- Living Trust: when you pass away, assets you have set up in a Trust can go to your Beneficiaries as specified by the Trust, avoiding the probate process.
- Jointly titled property (with Survivor’s Rights): Property titled jointly with Survivor’s Rights will automatically go to a Survivor after you pass. There is no need for the property to go through probate in this case.
WHAT IS A PERSONAL REPRESENTATIVE/EXECUTOR/EXECUTRIX OF A WILL?
A personal representative is a person, appointed by will or the court, to administer the decedent's estate. ‘Personal representative’ includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same
function, but in Massachusetts “executor” and “executrix” should no longer be used in wills and should be replaced by the phrase “personal representative”.
WHY GET HELP TO PREPARE A WILL?
Without help, you'll need to research your state’s laws. Lawyers and estate planners are familiar with local and state laws and can ensure your will is accurate, valid, and doesn’t leave anything out.
You may need to consider estate taxes. Enough said nobody wants to make the taxman or taxwoman mad! A lawyer can help figure out the cost of estate taxes, provide special care for a family member with long-term care needs, or assign your assets to a trust to reduce the impact of taxes on your heirs.
While a do-it-yourself will would be better than nothing, a professionally drafted document can do far more to protect your heirs -- particularly if the beneficiaries you'd choose aren't those provided by your state's intestacy law.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
Credits: Image credit: Melissa Gimpel Unsplash