Helping you figure out if a Will or a Living Trust would be useful for you is a crucial part of estate planning these days. In general, but not always, using a Living Trust can be a better estate planning approach. As part of our consultation, we go over your situation. And give you an honest, knowledgeable recommendation about whether a Trust or a Will is right for you.
"If you don't make an assertive decision, the universe will make it for you. And it won't be the one you want."
- Joel Bernstein
What is a Will?
A Will is a legal document that determines how assets in your sole name get passed on to others upon your death. Assets can include real estate, investments, objects, investments, and money. Sole assets are called 'probate' assets because the Will must go through probate court before assets can be distributed.
Any assets that are jointly owned assets or already have a beneficiary listed (such as IRA, 401K, and life insurance), are non-probate assets. A Will is irrelevant to non-probate assets. They pass outside of a Will so a Will does not dictate where they go.
Do I need a Will?
Wills are a good fit (rather than a Living Trust) if you have limited assets that are valued at less than a few hundred thousand dollars. Or if all your assets are in accounts that have listed beneficiaries or are jointly owned. Those assets are non-probate assets and not affected by a Will.
But, regardless of your asset size or non-probate assets, if you have minor children, you should name a guardian for your children in a Will. Even if you also have a Living Trust.
Can I write my own Will online?
You may be tempted to try writing a Will online. But it's more complicated than meets the eye. There are lots of legal rules that have accumulated over the last 700 years. Be careful and keep in mind:
Having a professional attorney, whose specialty is Wills and Trusts, help you plan your estate will give you and your family peace of mind about avoiding expensive errors. If you have already created an online Will, we can evaluate it as part of an estate planning review.
A Will is a good choice for smaller estates and is a must for those with children.
QUESTION #2: What does a Will contain?
Most Wills contain these sections, but there's no standard Will form. Design, formatting, and wording vary widely. Some Wills are short, others are long. Their length will be determined by family and asset complexity and how you'd like to leave those assets. We specialize in writing your Will in plain English, so you and your heirs will understand it.
Your name and location
A Will begins by showing your name. Often it then shows your address, likely just your town and state.
Statement of revocation of a previous Will
You can amend or replace a Will. To revoke a previous Will, a newer Will frequently states at its top: 'This will revokes any previous Will'. Even if these words do not appear, the law deems a later Will to be more effective than an earlier Will. But it's better to use words of revocation.
It's important to make a Will, or update your existing Will, if you've:
The name of your personal representative
The person you assign to be in charge will control your assets and distribute them according to your Will's provisions. Current Massachusetts law calls this person the 'Personal Representative'. Older Wills used the term 'Executor' or 'Executrix' if female, but that language is fading from estate planning.
Traits of a personal representative
Whether you use a Will or a Trust, the person in charge must be able to handle details and be honest and fair to each beneficiary, regardless of personal feelings. The law demands that this representative act only with the best motives. And many cases have interpreted this rule.
This person can be a family member or a professional trustee. Most Wills name a family member to be the personal representative. You can even name more than one person or provide a list of people, so if one person declines or cannot act for you, another person is in line to take on the responsibility.
If you don't have a family member to appoint, you may consider naming a professional trustee. 'Fiduciary' is another word for the person who takes over in a Will or Trust. If there are complicated assets, a large number of stocks and bonds, or real estate holdings, appointing a professional trustee may be your best choose.
Paying a personal representative
Wills and Trusts typically provide for reasonable payment to the chosen person. A family member may decline getting paid for their efforts. A professional trustee receives a higher compensation than a family member, but may be worth the expense if your estate is complicated. We can help you decide.
The name of your child's guardian
If your child is a minor, your Will should name a guardian who will care for your child after your death. For some younger clients with minor children, this is the most pressing goal of estate planning.
Explanation of how your assets will be distributed
Without a Will, your real estate and other assets are distributed evenly to your heirs at law, your nearest blood relatives, plus your spouse. For some people, having their assets distributed in this way is fine. A Will allows you to be more precise about where your assets will go to add financial safeguards to specific people beyond what the law provides.
With a Will, you name specific people (friends and relatives) or charities and other organizations as beneficiaries. This helps you distribute assets in ways that benefit your chosen beneficiaries according to their needs. It also allows you to omit a relative from your will because of an estranged relationship or because the relative has plenty of money and does not need your assets.
A Will is not finished until you sign it. If you die without first signing a Will (or a Trust), your 'heirs at law' will receive your assets. Heirs at law are your nearest blood relatives, according to the law's definition.
A Will has the signature of two witnesses who are not named as beneficiaries in your Will. Often these are employees in your attorney's firm.
A Will written in plain English has all the components required by law and is easy to understand.
If you die without a Will or Trust
Your family may need to use the probate court. It's more complicated and time-consuming than if you left a Will. If you have no family at all and you die without a valid Will, your estate may pass to the State Government. You could do more good by writing a Will that gives everything to a charity of your choice.
All Wills must be filed with the probate court within 30 days of death
Massachusetts law requires a person who holds a Will of a recently deceased person to file the Will with the probate court within 30 days of death. That person will hand it over to the clerk at the probate counter (and request a copy stamped for the estate's file).
This is required, even when the Will does not need to go through the probate process. Remember: To FILE a Will is not the same as to PROBATE the Will.
Despite the law about filing a Will, MA probate court law does not have a penalty for not doing it.
Your Will probably goes through probate court
A Will doesn't actually become effective until after a MA probate court says it's valid. It's part of the probate system. If you have assets that are in your sole name, your estate will go to probate court. If there are no assets in your sole name, your estate does not necessarily go to probate.
Wills can be decades old and continue to be valid. Probate courts will not reject a Will due to the document's age.
Creditors can petition the court
Remember that most debts—but not all--are extinguished 12 months from the date of death. There are exceptions to this general rule. It's a complex area of MA probate law. Probate court is the place your creditor can seek to get paid on your death. If not paid, a creditor may bring a lawsuit against the probate estate. But first a Massachusetts probate court must appoint a Personal Representative to be served the lawsuit papers.
If you don't probate a Will, a creditor can probate it. Ask the MA probate court to become the personal representative of the estate. And then the creditor can bring suit against the probate estate.
Don't leave your assets without detailed instructions. Put a Will or Living Trust in place so your death benefits the ones you love.
A different type of Will is a 'Pour-over Will.' You sign this type of Will when you create a Living Trust. A Pour-over Will tells the personal representative to deliver any named assets to your Living Trust.
Some people think that with a MA revocable living trust you don't need a MA Pour-over Will. But that's not good estate planning--if you didn't transfer an asset into the Living Trust while living, it should go there after death. Consider a bank account in your sole name at a local bank. The Pour-over Will says to transfer it to your MA Living Trust.
Will with Testamentary Trust
An older, lesser-used type of Will is a Will with Testamentary Trust, which includes a trust provision INSIDE the Will. This type of will is not used as much anymore, because a Living Trust provides its benefits without probate court involvement.
Around 1900 this type of Will was common when the husband owned all the family assets. On his death, those assets were turned into a trust for the surviving spouse. This older type of trust instructed the trustee to ONLY pay the surviving spouse the trust's income. The surviving spouse would need to live off the income, so the trustee needed to create income from the estate through bonds or stocks that paid dividends.
Even with a Living Trust, you may need a Will too.
Most middle-aged people aren’t ready for their inevitable death. We make estate planning simple, affordable, and quick. So people can live in peace, knowing their affairs are in order.