Pros and Cons of a Will
The good and the bad of a Will
If you die without first signing a will (or a trust), your assets will be given to your 'heirs at law'.
Pro: You can use a will to dictate who will receive your assets on your passing. By getting a will, sometimes called a Last Will and Testament in Massachusetts, you can change the way your assets will be distributed on your death.
Wills are also the place where you name guardians of your minor children. This role of last wills in Lexington, MA is one of the most important roles a will can play. For some of our younger clients, with minor children, this is the most vital reason for creating a will or estate plan.
Historically people used a will to more precisely determine who gets their assets - as the law in the past has not always gotten it right for their situation.
For example --- in the past, if you were married and died with a spouse and children, part of your assets went to your spouse and part to your children. Many people want their spouse to get it all on the first death - because the spouse really needs it. Well, in the past, the law dictated otherwise.
Heirs at law are your nearest blood relatives, plus your spouse. For some people, having their assets go to these persons is just fine.
But other people want to be more precise about where their assets will go. They realize all types of mishaps may happen to their loved ones or to their assets, often beyond their own ability to predict.
Or, they may not like their heirs at law. Think siblings. Or others.
Leave more to those who need? Charity?
Or they may like all their relatives but some relatives have more money than heaven. And adding more to those stockpiles may not be what they want.
Or, maybe a charity is important. Maybe a person whom is not a relative but you truly want to give money to if they outlive you.
A will only affect assets in your sole name at death
Keep in mind that even a will has a limited role in the big picture. Because a will doesn't control all your assets. It only controls the assets you own at your death that are in your SOLE name.
Many types of assets do not pass through a will
If you think about it for a few minutes, you may see that many of your assets are not owned in your name alone. Assets in your sole name may be only a minor part of your total wealth.
Think about it: how much of your wealth will be controlled by beneficiary designation (IRA, 401k), beneficiary (life insurance) or joint homes or bank accounts.
A will can nominate a child's guardian
Pro: In addition, for those people who have children under the age of 18, Massachusetts law allows the parent to nominate (suggest to the probate court judge) the person or person whom the parent wants to have custody of the child if the parent can no longer do that.
So, when there's no need for a trust, you can use a will to state who will be in charge of your affairs after your death.
Most of your life is spent working to build up assets. Making a will is an essential step in ensuring that your assets pass to the people that you choose.
Also, a will is a legal document that appoints your Personal Representative (used to be called 'Executor') upon your death and names the people that you want to receive the property and possessions you own at the date of your death.
This Plain English Guide answers some of the more commonly asked questions about making a Will, but remember that your lawyer is available to answer any other questions or provide advice when you need it.
If you die without a valid will (known as dying “Intestate”), your estate will be distributed according to a formula set down by the government (called the “Law of Intestacy”). The Law of Intestacy will, in all probability, not reflect your wishes particularly if your circumstances are in any way unusual.
The Law of Intestacy will in all likelihood lead to an undesirable result in circumstances where you have had more than one relationship or if you have a family with small children.
The legal procedures on intestacy are more complicated and time consuming than if you have a will and the situation may cause expense, worry and hardship to your family and friends. Of course this expense and worry can be avoided by seeing one of our lawyers to make a valid will.
If you have no close family and you die without a valid will your estate may pass to the State Government.
Everyone over the age of 18 should make a will. However it is particularly important to make a will, or update your existing will if:
You can make a will yourself if you wish. However, a will is a very important legal document and it is not in your best interests to draft one yourself if you want to make things as easy as possible for your beneficiaries.
There are several rules that should be followed to ensure that a will is properly signed. If one of these rules are broken, it may create problems in the administration of your estate.
There are also a number of technical rules relating to the wording of wills. If you are not familiar with these rules it is quite possible that your will will be interpreted in a way which you did not intend.
Lengthy delays and court cases over wills often occur because a person’s will has been drawn without professional advice. Often the expense saved in preparing a will at home can translate to many thousands of dollars in costs to your estate if there are problems with your will.
There are a number of assets which you might expect that you ‘own’ but which in all probability will not be covered under your will. For example:
Many family businesses are conducted through companies, family trusts or partnerships and if that is the case it is important to remember that the business itself cannot be left by a will. The only asset that can be directly passed on by a will is your interest in the company, trust or partnership.
Your lawyer will be able to advise you as to the best method of ensuring that your succession intentions are carried out and that these items are adequately addressed.
We can simplify the process of making a will. We will ensure that we fully understand your needs and will then be able to make things as clear as possible in your will.
Before coming to see us to make a will, please consider: