Why Do I Need a Will?

Property passes, on death of the owner, in one of three ways. The owner may make a will, the property may be titled so that it will pass to a designated person (as, for instance, property which is owned as joint tenants with right of survivorship), or the property may pass by contract (as in the case of life insurance payable to a designated beneficiary).

If someone does not have a will, property in their name alone will pass by intestacy. If they are married, and have no children or other relatives, their property will pass to their spouse. If they are married and have children or grandchildren, the spouse receives half the property and the children or grandchildren receive the other half.

If they are married, and have no children, but have a relative or relatives, the spouse takes the first $200,000 of assets and the balance is split between the spouse and the relatives. The order of priority for distribution to relatives is that the person's parents are first in line, then the person's siblings, then other relatives.

Sometimes people feel that they have only a small amount of assets, and that the amount of assets does not warrant their making a will. It is my feeling that if someone has a small estate, careful planning is at least as important as in the case of a large estate - in a large estate if someone makes a mistake, there is still enough money to go around, but in a small estate, you need to make every cent count.

Suppose someone considers that he or she has very few assts and concludes that a will is not necessary. Then, immediately before his or her death, a relative dies and leaves him or her substantial funds - or he or she buys a winning sweepstakes ticket - or is awarded a judgment in a lawsuit.

If all of someone's assets are jointly owned with their spouse or some other person or are payable directly to a beneficiary (as in the case of a life insurance policy), they may feel that they do not need a will. If everything they own passes directly to a beneficiary, they indeed will not need a will. However, often there is an asset - perhaps a few shares of stock or a bank account - which is forgotten, and in that case, the asset will pass by intestacy.

If I Can Download a Will from the Internet for $25, Why Do I Need an Attorney?

A "one size fits all" will may be perfectly adequate. However, the knowledge and experience of an attorney may be necessary to determine whether a simple will is sufficient.

The simplest tool that I know of is a scalpel. I would be much more comfortable with the scalpel being in the hands of a skilled surgeon than a carpenter, however competent he might be.

There are situations in which you need something other than a simple will. Let's look at some of the cases.

If you are married, your spouse may have medical problems. Leaving assets directly to your spouse may subject those assets to nursing home expenses, whereas establishing a trust for your spouse may protect those assets from nursing home expenses.

If one of your children has medical or psychiatric problems, and may be entitled to government benefits, leaving assets directly to the child may disqualify him or her from government benefits. Placing the assets in a "special needs trust" may enable you to provide "extras" for your child and at the same time not disqualify him or her from government benefits.

If your child is a minor, leaving assets to him or her directly will require the appointment of a guardian. You may prefer to establish a trust arrangement for the child, since the person you wish to serve as guardian may not be the person you would want to manage your child's money.

In your will you can designate the person you choose to serve as the guardian of your child while he or she is a minor. The Probate Court will appoint the person you name, unless there is some strong reason he or she would not be suitable.

Perhaps your child is in a shaky marriage that may end in divorce, or has a predatory spouse. Or perhaps your child is being chased by creditors, or is a spendthrift. In such a case, you may not want to leave him or her assets directly, but you would wish to use a trust arrangement.

In some situations, you may not want to leave a child anything. Maybe the child is wealthy, or for whatever reason you are estranged from the child. If you do not mention the child in your will, he or she may be able to claim a share of your estate. There is no legal requirement that you leave the child anything, but you must be careful to specify in your will that you have left the child out deliberately and have not forgotten him or her - otherwise, he or she may be able to obtain a share of your estate on the grounds that the failure to provide for him or her was an oversight.

The only person who has any right to make a claim on your estate is your spouse - if you do not provide for him or her, then, unless there is a biding prenuptial agreement in place, he or she can petition the Probate Court to be allowed a share of your estate.

Be Careful in Executing Your Will

Some states will accept a "holographic" will - that is, one which is entirely in the handwriting of the testator, and is not witnessed. That is not the case in Massachusetts.

In Massachusetts a valid will must be in writing and witnessed by two persons. We also have the parties acknowledge their signatures before a notary public - this makes it simpler to have the will accepted by the Probate Court.

Executing a will must be done carefully. A witness should not be a beneficiary of the will or the spouse of a beneficiary of the will. If a bequest is made to a witness or the spouse of a witness, the bequest is void unless there are two other witnesses and no bequests are made to them or their spouses.

A Note about Probate

Massachusetts has recently adopted the Uniform Probate Code. Under the Uniform Probate Code, which takes effect in Massachusetts on July 1, 2011, the probate process will be very simple. Unless a beneficiary requests the formal probate procedure, it will only be necessary to file the will with the Probate Court.

Other Documents

In addition to a will, everyone should have a durable power of attorney and a health care proxy. The durable power of attorney allows someone to act for you in financial matters if you become disabled - thus avoiding the necessity of having a guardian appointed. A health care proxy allows your designated health care agent to make health care decisions for you if you are unable to make those decisions for yourself.