Probate & Estate Planning
Why should I have a will?
The purpose of a will is to ascertain who will receive your property and when they will get it. You may choose to set up a trust which sets forth that your property be held until a specified date in the future or until the person you want to receive it reaches a certain age. You can also choose to devise property from your estate to the charity of your choice.
A will is also very for one to set out who will manage your estate “the executor”, who will bring up your children “the guardian”. Without a will you are leaving it up to the state to determine who will receive your property and who will raise your children. If you have a will you can expand the powers given to your executor, such as giving the executor the power to sell or convey real estate without having to obtain a license to sell from the court.
If I am married do my spouse and I need separate wills?
The answer is NO. Massachusetts does not recognize joint wills. Each spouse will need their own separate will, even if you all your property is owned jointly. If property is owned jointly when the first spouse dies, all jointly held property will pass to the surviving spouse. For that reason, the surviving spouse who will become the outright owner of the property will need a will. No one can determine who will die first and that is why both spouses will need their own separate will.
What is the best place to keep my will and other estate planning documents?
The easiest place is to have your attorney keep the original will. Copies of your will can be keep in your safe deposit box. If you feel comfortable you may want to give a copy to the executor named in the will. However, if you later decide to change your will or the executor in your will, make sure to have the executor give their copy back. Note that only one original will is signed. You can have more than one executed durable power of attorney or health care proxy. Your lawyer should have an original, with the other kept safely in your safe deposit box. Your may also give your physician a copy of the health care proxy so that it may become part of your medical records.
Why would I need to change my will?
If you already have a will the rule of thumb is that it should be reviewed every three to five years, in order to determine if it still achieves your wishes. Certain events in life may require more frequent review of your will such as getting married, separated or divorced (marriage revokes a will; divorce revokes the provisions concerning the spouse) if you have a child or grandchild, you move residences, changes in the values of you assets or applicable tax laws and lastly if your relationship with a beneficiary or someone named in your will has changed.
You can change, revoke or replace your existing will by creating a new will any time, as long as you are competent. To be deemed competent, one must understand the nature of your act in which they are involved, be aware of the value of their estate and understand who, the people are that you want to benefit.
You can also change a will by creating an amendment, also known as a “Codicil” which is executed in the same fashion as a will, before two witnesses and a notary public.
You can also revoke a will by the physical act of tearing it up.
How do I choose to the right person to be my executor?
Choosing an executor is often done in an attempt to keep costs down. Often times people may choose a friend, spouse, neighbor, or other relative. However, with tax laws and postmortem elections becoming more complex, it is important to consider someone with the appropriate skill set and someone who will not be in over their head.
In a perfect world your executor should be highly competent, dependable, have a good understanding of the applicable tax laws and have good financial background. A good options might be a bank trust department or a lawyer.
Another option is to name a family member as co–executor along with a professional. This way the personal interests are mixed with professional experience.
