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You need a will to determine who will take your property and when they will receive it; for instance, you can direct that your property be held in trust until the person you want to receive it reaches a specified age, or you can give property from your estate to charity. You also need to choose who will administer your estate (the executor), who will raise your children (the guardian) and who the other "players" such as trustees or custodians will be. If you do not have a will, the state intestacy statute applies, and the state determines who will receive your property. With a will, you can broaden the powers your executor will have, such as the power to sell real estate without license of the court. You can also direct the executor to serve without sureties on his or her bond.
Can my spouse and I have a joint will?
No. Massachusetts does not provide for joint wills. Both you and your spouse need separate wills, even if you own all your property jointly. When the first spouse dies, all joint property will pass to the survivor. Therefore, the survivor who becomes the sole owner of the property needs a will. Because there is no way of knowing who will die first and who second, both spouses need wills. Also, you may own property - either in the future or even now without knowing it - that is not held jointly with your spouse. back to top
Where should I keep my will and other estate planning documents?
Have your lawyer keep the original of your will. Keep copies in your safe deposit box or strongbox. You may want to give a copy to the named executor; however, if you later change your will, have the executor give that copy back. Note that only one original will is signed.
There can be more than one executed copy of the durable power of attorney(link to power of atty page) or health care proxy. The attorney should hold an original copy, with other copies kept in your safe deposit box. Your attending physician should be given a copy of the health care proxy(link to health care proxy page)to be made part of your medical records. back to top
How and why should I change my will once it has been signed?
Once you have made your will, you cannot just put it away and forget about it. You should review your will every three to five years, to make sure it still accomplishes your desires; however, it may be necessary to review it even more frequently if:
A will can be changed, revoked or replaced by a new will at any time, so long as you are competent. To be considered competent, you must understand the nature of your act, know the extent of your estate and know who are the people you want to benefit.
Signing a codicil, which is an amendment to a will, with the same formality as a will - i.e., before two witnesses and a notary public, can change a will.
Tearing it up, or canceling it can revoke a will or you can sign a new will. back to top
Who should I choose to be my executor?
People often pick their spouse, a friend or neighbor, or a relative to act as executor. This choice is often made so as to save on administrative costs or to honor an individual. However, as tax compliance and postmortem elections become more complicated, this choice may impose a real burden on the individual and not achieve the original goal.
The executor should be trustworthy, highly competent, have a good knowledge of the tax laws and have good financial judgment and business sense. A choice might be a bank trust department or an attorney.
Another possibility is to name a family member as co executor with a professional. In this way the personal interest is mixed with professional expertise and management. back to top
What is a living trust?
A trust is an arrangement where assets are given to a trustee to hold and manage for your benefit or the benefit of your beneficiaries. The purpose of a trust can be
A living trust is just a type of trust, created while you are living. It can be funded while you are living or after your death. If funded before you die, the assets in the trust will not pass through probate and to that extent will avoid the probate process. You can be a beneficiary of this type of trust. Click here for more info on "living trusts." back to top
Should I put funeral instructions or anatomical gift provisions in my will?
This is not recommended. The will may not be probated or even read until some time after death - quite possibly not until after the funeral. Therefore, it is not a good place to deal with these issues. A better idea is to send a letter with funeral instructions to your family, funeral home or religious affiliation. For anatomical gifts, there are some forms that can be filled out in advance and documentation that can be kept with you in case of accident. back to top
Why do I need a power of attorney since my spouse and I own all our assets jointly?
A power of attorney is a written instrument by which one person (the principal) designates someone as his or her agent or attorney in fact to perform certain acts. If it is "durable," it continues in effect even if the principal becomes incompetent.
This can be very important if you or your spouse becomes incompetent. It can avoid the appointment of a guardian or conservator for the management of assets. Even if property is jointly owned, signatures of both parties are often required, such as in the transfer of real estate. A power of attorney would allow you to sign for your spouse. Also, it allows you to be the payee of certain items, such as Social Security payments, and it allows you to sign income tax returns on behalf of your spouse. back to top
Why do I need a health care proxy?
A health care proxy is a document by which one individual (the principal) appoints another (the health care agent) to make health care decisions for him or her should he or she be unable to make or communicate such decisions for himself or herself. The health care agent can even make decisions concerning the use or terminating the use of life support systems. Again, this is extremely important if you become incompetent.
These documents are needed not just for the elderly or infirm. There is no way to predict when an accident might happen or when such a document will be needed. Both are recommended as an important part of every estate plan. back to top
What is probate; should I avoid it?
Probate is the court process of proving the validity of a will. If there is no will, the process proves who the next of kin are, to determine who takes the estate. In Massachusetts, probate is not an expensive process; however, it can take time. In fact, the estate is required to stay open for one year from the date of death so that creditors have time to file any claim.
Probate can be avoided by having assets held in a form that will pass title to others after your death by operation of law. This includes joint ownership of assets or assets where a beneficiary can be named, such as life insurance, IRAs, pension plans, etc. The assets transferred to living trusts prior to death are also not subject to probate, but are controlled by the trust agreement. back to top
Can I keep my ex-spouse from inheriting my estate and yet still take care of my kids when I die? Can I provide for my second spouse and still protect my assets so they will pass to my children on my spouse's death?
Yes. This is why a will and particularly a trust are so important. Your ex-spouse may very well be appointed guardian of your minor children. If you have no will, your kids will inherit your estate when you die. But if they are under age 18, your ex-spouse - as guardian - will have control of your money.
If you have a will, you can create a testamentary trust to hold your estate for your children until they reach majority (or even older) so that your ex-spouse never touches the money you want your children to receive. This can also be accomplished with the use of a living trust.
Likewise, providing for a second spouse and still protecting assets for your children can easily be accomplished through either a testamentary or living trust. You can provide as much or as little for your spouse as you wish for his or her lifetime (subject to his or her statutory rights to take a certain share of your estate). Because the assets are in trust, he or she can benefit from them but not control them. You, not your spouse, control the final disposition of the assets. Your trust can provide that when your spouse dies, the balance will pass to your children or issue or it could be held in further trust for them. Your children or issue could even be beneficiaries of the trust while your spouse is living, if you wish. However, if tax planning is a concern, there are certain restrictions that must be taken into account.