April 4th, 2014 by Jenna N. Schmidt, Esq.
The Importance of a Will
What is a Will?
A Will is a document that has many roles; the most important of which is that it allows you to dispose of your “probate property” upon death in the manner of their choosing. A Will allows you to choose who gets which property and how they receive the property. This may include specific personal property, such as jewelry or furniture, and/or bequests of money or a certain percentage share of your estate. A Will also allows you to leave a donation to a charitable institution, should you wish to do so.
Your Will may also nominate a guardian for your minor children and nominate the Personal Representative (also known as an Executor), who administers your estate.
What is “Probate property?”
“Probate property” may include real estate, automobiles, bank accounts and personal property such as furniture, among other assets Unlike probate property, “nonprobate property” is property which does not go through the probate process upon one’s death. Such property includes Trusts, “payable on death” bank accounts and retirement accounts which have already designated a particular beneficiary. “Nonprobate property” is generally not controlled by a Will, and transfers outside of the probate process upon the decedent’s death.
What is the Role of a Personal Representative?
The Personal Representative is in charge of collecting the decedent’s assets, paying the bills and, eventually, distributing the property in accordance with the terms of the Will. Depending on the way in which the Will is probated, the Personal Representative will probably have to file an Inventory and Accountings with the court in order to show the property was properly handled and disposed of. For this reason, many people choose to hire an attorney to help navigate the probate process.
Who Should I Nominate as my Personal Representative?
Most often, one’s spouse is nominated as the Personal Representative, with a child nominated as an Alternative Personal Representative if the spouse ceases or is unable or unwilling to serve. Or you may decide to nominate an attorney to serve as your Personal Representative. This is a particularly good idea if you want to avoid family disputes or if you have no one in your family to serve in this capacity. The Personal Representative can be monetarily compensated through your estate for a reasonable fee.
What Happens if I Pass Without A Will?
In Massachusetts, the laws of intestacy apply if you pass without a Will. The laws of intestacy are unlikely to meet your desires for the disposition of your property.
For example, if you pass away without a Will and either you or your spouse has children from outside of the relationship, your surviving spouse will receive the first $100,000 of your estate and one-half of the balance. The rest of the estate is shared between your children.
For many people, this may not be a satisfactory result. A Will, however, can be tailored to meet your wishes exactly regarding who gets which property, and how much. It also can provide for who will receive the property should a particular beneficiary predecease you.
When Should I See An Attorney to Discuss Estate Planning?
It is always a good idea to discuss your personal situation with an attorney to ensure your estate is going to be settled the way you intend. Even if you already have a Will, it is important to review it every five years due to changes in the law and in your personal situation. You should also review your Will with an attorney in the event that you get divorced, or your spouse passes away.