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What is a Will?
A Last Will and Testament, commonly referred to simply as a “Will” is a legal document that is signed by a person during his/her lifetime which directs to whom that person’s assets are to be distributed upon the person’s death. The Will-maker is commonly referred to as a Testator (male) or Testatrix (female) and those who receive distributions of real and tangible property are called devisees or legatees, also known as beneficiaries. A common misconception is that a Will is a document that has effect during one’s lifetime. To the contrary, a Will only speaks at a decedent’s (dead individual’s) death and has no effect during the Will-maker’s lifetime. A Will does not avoid Probate and in fact may be fully administered through the Probate Court where the decedent resided and/or owned real estate during his/her lifetime. Probate is the legal process that oversees an individual’s assets upon his/her death. Probate is not private, and Wills filed with the Probate Court upon a person’s death are public record, as are all assets passing to beneficiaries by one’s Will.
Whether you have many assets or just a few, having a Will makes good practical sense because most people prefer to choose who will receive their assets after their death. The laws of intestacy (dying without a Will) in Massachusetts do not necessarily favor those whom a person intends to benefit. This is especially true of individuals who are not married or are married but without children. For instance, assume an unmarried individual without children dies intestate (without a Will). That decedent’s estate assets will pass to his/her next of kin (blood relatives) in accordance Massachusetts law. Although the decedent may have been in a serious and committed relationship during his/her lifetime and have had other intentions regarding his/her Probate estate assets, without directing specifically to whom assets are to be distributed in a Will, the assets may pass to the decedent’s parents, if they are living at the time of the decedent’s death, or otherwise to the decedent’s siblings, nieces/nephews, and so on. Moreover, for the person who is married, but without children of his/her own, the law states that the person’s spouse is entitled to a specific portion of the person’s Probate estate, but not to all of it if the person’s parents are living at the time of his/her demise. This is all determined by Massachusetts law and many people are surprised to discover who is entitled to what, when and how relative to their estate. You can readily see how lack of planning can lead to unintended and financially devastating circumstances for loved ones left behind.
Even if an individual has no assets, if that person has minor children then it is imperative that he/she have a Will in order to name Guardians for the minor children in the instance of the individual’s death while the children are still minors. Although the Probate Court will preside over a Guardianship proceeding and make the final decision, there is much more certainty that those whom a decedent has chosen to care for his/her minor dependent children upon his/her death will be appointed to serve as Guardians if the decedent has made his/her wishes regarding Guardianship clear in a Will. Having a Will, if for no other purpose than to name Guardians for minor dependent children, provides a sense of security for many parents in planning for their children’s future.
It is important to note that not all assets owned by a decedent automatically pass in accordance with his/her Will. Specifically assets that pass by “operation of law” and “operation of contract” are not generally Probate assets, thus they do not normally pass in accordance with a decedent’s Will. Assets that pass by operation of law include joint property (i.e., jointly held real estate, jointly held bank accounts, and other assets held in the form of joint ownership). Real estate held as tenants by the entirety by spouses is also considered joint property. Assets the pass by operation of contract generally include such assets as life insurance, annuities and retirement plans, and any contract asset wherein the owner has named a beneficiary who is to receive the asset upon the owner’s death. Some assets which generally pass by operation of law or contract can become Probate assets. Such examples include when there are no longer any joint owner of an asset surviving, or when a beneficiary to a contract asset predeceases the owner of the asset. Despite some advantages to these sorts of assets passing outside the direction of a Will, generally speaking, placing assets into joint ownership or naming multiple beneficiaries in order to avoid the Probate process is not the best solution and can have unintended and undesirable consequences.
Also important to note is that placing all emphasis on planning on a Will does not optimize any disability or incapacity planning because a Will is only effective upon the death of the individual. Thus, relying solely on a Will guarantees that if an individual becomes unable to handle his/her financial or physical matters during his/her lifetime, the Probate Court will be involved in appointing a Guardian and/or Conservator to handle matters for the incapacitated individual. Proper planning through use of health care directives, Durable Powers of Attorney and Revocable Living Trusts can appropriately plan for the unfortunate instance of incapacity/disability and avoid the expense, delay and publicity of a Guardianship or Conservatorship proceeding in the Probate Court.
Despite the lack of privacy, expense and delay of Probate, it is still important for all individuals to have a Will, even if a person has done more sophisticated planning such as a Revocable Living Trust because the Will serves as a catch-all of sorts for assets that might not have been funded to one’s Trust during his/her lifetime. Even more important is the matter of Guardianship. As previously stated herein, a Will is the document in which those with minor dependent children name Guardians, and regardless of any other estate planning completed, an individual with minor children needs to have this document appointing Guardians because the Probate Court will always preside over Guardianship proceedings.
Realizing this article may cause the reader to question its contents, Arlanson Law Offices invites you to contact our office for a no-obligation (no fee) consultation.
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