A Guide for Elders: Planning That Protects You and Your Assets, Chapter 4
WHY DO I NEED A WILL?
WHAT IS A WILL?
A last will and testament is a written expression or declaration of a person’s mind or wishes as to the disposition of his or her property, to be performed or take effect after death. It must be in writing, witnessed by two disinterested persons, and should be notarized, although the law does not require notarization. A will that is notarized, however, will eliminate the need for the witnesses to give an affidavit when the will is admitted to Probate after the death of the will-maker (called the Testator).
WHY IS A WILL NECESSARY?
Consider the following scenario:
Following this chapter, you will find a chart that explains how an estate is distributed depending on what relatives survive the deceased person. You should consult that chart to determine whether, if the law were followed, the result would be the same distribution of your estate that you would want it to be. If not, then you should have a will. Even if the results would be what you want under your present circumstances, you should have a will, because your circumstances or the law itself may change, and you cannot anticipate what the future will hold.
Mrs. Belle Brown’s husband, Frank, died very suddenly a week ago, and she does not know where to turn. She believes that he made out a will, but Rollo, one of Frank’s sons from his first marriage, has been searching his father’s den, and says that he could not find a will. Mrs. Brown is pretty sure that Attorney Dewey drew up a will a few months back when Frank was in the hospital. She is worried about what will happen if no will is found. Frank’s old will left everything to his twin sons, Rollo and Apollo, but he wrote that will over ten years ago, before Frank and Belle were married. Frank had a number of stocks, bonds, and bank certificates of deposit in his name alone, as well as a summer home on Lake Winnipesaukee. Belle’s name is on the deed to their home in Swampscott.
Whether there is a will or not determines whether Frank’s wishes, as to what should happen to his property on his death, will be carried out. If there is a will, then Frank died TESTATE, and his wishes will control who gets the property in his probate estate: whatever was in his name alone at the time of his death. If he did not leave a will, he died INTESTATE, and a law, found in Chapter 190 § 1 of the Massachusetts General Laws, controls how his estate will be divided. That law, called the law of intestate succession or the law of descent and distribution, dictates who will share in Frank's estate, and how.
WHY DO I NEED A WILL?
If you make a valid will, you — rather than the laws of Massachusetts — control how your probate estate is to be divided. You prevent costly disputes, and assure that persons of your choice share in your estate.
WHAT SHOULD I CONSIDER IN WRITING A WILL?
You should secure expert advice in drafting your will, so that it cannot be successfully challenged or contested by anyone disappointed with its terms. If a will is successfully challenged or contested, the law of descent and distribution may control, that is, decide who takes what from your estate, or your previous will may control how your estate is distributed.
You should carefully decide who should be put in charge of handling your estate. The Executor, whom you nominate in your will, is appointed by the Probate Court, and has the duty to preserve the property or assets of your estate, pay the creditors, and distribute the estate property to the beneficiaries whom you name in the will, according to your wishes. You should choose someone whom you trust to carry out your wishes, who will be responsive to your beneficiaries, and who can manage your estate, or has the good judgment to hire professional assistance to manage the assets of the estate until they are distributed.
HOW CAN I SAFEGUARD MY WILL AFTER I SIGN IT?
You have a number of options as to how you can safeguard the original copy of your will. You can:
• leave it with the lawyer who prepared it; he or she will keep it in your casefile; • bring it home and keep it wherever you keep your other important papers; • store it in a bank safe deposit box (be sure to arrange for someone to have access to the will, in the safe deposit box, after your death); • file it, while you are still alive, at the Probate Court for the county in which you live.
Remember that none of these options guarantee its safety. If the original of your will is lost or destroyed, however, a copy can be probated, as long as it can be shown that the original was lost or destroyed, and you did not destroy the will yourself or execute any later wills.
WHAT HAPPENS TO MY WILL WHEN I DIE?
Within thirty (30) days of your death, the person who has possession of your will (the custodian) is required by law to file it with the Probate Court for the County in which you resided at the time of your death. If there are no assets in your estate, then the custodian need take no further actions. If there are assets in your estate, then a petition must be filed for allowance of the will. The petition is usually filed by the Executor, and notice is given to all of the heirs at law (those who would inherit, under the law, if there were no will), to the beneficiaries of the will, and to any known creditors, and a notice is usually published in the legal notices section of the newspaper. Any of these people may object to the appointment of the Executor, and, if there is an objection, the Probate Court judge decides whether to appoint the named Executor or another person. A named Executor will be given preference, but may be disqualified if there are good grounds to do so. The Executor marshals the assets of the estate, files an inventory, pays the creditors, and makes distribution to the beneficiaries.
If you die without a will, the same process may occur, except an Administrator, rather than an Executor, is appointed to conduct the affairs of the estate. Instead of distribution to the beneficiaries, distribution is made to the heirs at law, according to the chart found at the end of this chapter.
ARE PROBATE COURT PROCEEDINGS COMPLICATED?
It is not prudent to try to probate an estate without expert advice. Only experienced counsel can guarantee that you will avoid the pitfalls that may exist. Following this chapter, there are examples of what papers are filed relative to estates. There is, first, a form to be filed (Petition for Administration) if Frank Brown died without a will. Next is a form to be filed (Probate of Will) if he died with a will. If Frank left only a small estate worth less than $15,000, a Voluntary Administrator Petition is filed (see form) if he left no will, and a Voluntary Executor’s Petition is filed (see form) if he left a will. There is a bond form, which require “Sureties,” who are people (or insurance companies) who, in effect, guarantee the honesty of the Executor or Administrator. If the Executor or Administrator misappropriates the assets of the estate, they, or their sureties, may be sued by the creditors or beneficiaries.
WHERE DO I GET MORE INFORMATION? The law of wills and estate is found at Chapter 190 § 1 of the Massachusetts General Laws. If you need more help, please see the last paragraph of Chapter 2 for referrals.
MASSACHUSETTS LAW OF DESCENT AND DISTRIBUTION
LAW OF INTESTATE SUCCESSION (G.L. c. 190 § 1)This chart demonstrates how your estate is divided or distributed in the event that you die intestate, that is, without a will: IF YOU ARE SURVIVED BY: YOUR ESTATE IS DISTRIBUTED: 1. Spouse and child/ren One half to spouse
One half to children2. Spouse, no children, but next of kin (including parents, siblings, niece, nephew, aunt, uncle, cousin, etc.) Where the estate is less than $200,000, all to spouse. If the estate is larger than $200,000, the first $200,000 plus one half of everything in excess of $200,000 to spouse. The remainder to next of kin in this order: Parent(s), siblings, nieces and nephews, grandparents, uncles and aunts, cousins 3. Spouse, no child, no next of kin All to spouse 4. No spouse, one or more children All to children 5. No spouse, no child, but next of kin All to next of kin, in the order described above in 2. 6. No spouse, no child, no next of kin All “escheats” to the Commonwealth of Mass., that is, all is turned over to the State, because there are no heirs or beneficiaries.
Chapter 4 Exhibits (sample Probate Court forms)
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