So many clients come to the office and say that they’ve been meaning to get their wills done for years. Whether they have children and need to appoint a guardian or they want to make sure their estranged brother doesn’t inherit their life savings and blow it on an epic weekend, they arrive feeling like they “should have done this years ago.”
We hear you. Getting a will can be a daunting process. But we can make it easy.
What does a will do?
A will is a formal legal document that does several things.
First, a will declares how certain assets– your “probate estate”– will be distributed when you pass away. Your probate estate includes assets that do not have designated beneficiaries. It usually consists of individual bank accounts, vehicles, and real estate that is owned individually or as tenants in common. (Real estate owned jointly with rights of survivorship passes to the person who co-owns the real estate with you.) Your probate estate usually does not include retirement accounts or life insurance, because those assets usually have designated beneficiaries.
Second, your will nominates guardians to care for your minor children when you no longer can. The Probate and Family Court will appoint the primary guardian you choose if that guardian is in the children’s best interests. This means that if the person you nominate can’t care for the children for any reason, the Court will look to the next person nominated by your will or will look to others.
Third, a will allows you to nominate a personal representative, also known as an executor, who will distribute your probate estate. This an important job that should be assigned to someone you trust. The person should be reliable and able to adhere to deadlines. It’s also a good idea to choose someone who you know can diplomatically handle tricky family dynamics.
| Did you know? The word “executor” is a gendered term; a female executor is an “executrix.” Massachusetts has now adopted the gender neutral term, “personal representative.” |
What if I don’t have a will in place when I die?
The first reason to put a will in place is to designate who will get your property. If you die without making a will, the intestacy laws of your state direct the process. In Massachusetts, this usually means that your surviving spouse will inherit your entire estate, although there are exceptions. If you have children from a prior marriage, dying without a will makes the distribution of your assets complicated. If you have estranged family members, dying without a will may mean those family members inherit your property. Having a will places the distribution process in your hands rather than the hands of the court. It ensures that your property will be distributed in a way that makes you happy.
Next, if you die without putting a will in place and you have minor children, you don’t have a voice in the matter of who will be your child’s guardian. The Court is left to the arguments of those who step up to take care of the children, and will use the information available to make a determination based on the children’s best interests. Nominating a guardian by will makes it so that guardianship will likely be granted to the person you deem most fit. For more information about guardianship, see our article here.
Finally, if you do not have a will, there is a much greater likelihood that conflict will arise over your assets. Having a will does your relatives a favor by giving unquestionable instructions about what belongs to whom, helping to avoid potential disputes. It provides clarity, manages expectations, and helps avoid unintended consequences to family dynamics.
Do I need an attorney for my will?
In short: Yes.
We recommend using an attorney for your will, and not just because we want your business! Wills can be confusing and include plenty of legal jargon. An attorney will be able to answer any questions you might have and ensure that your will accurately reflects your wishes. An attorney, unlike many online automated will services, will also be able to ensure that your will complies with state-specific requirements. A will is an important and binding document; cutting corners here is never a good idea.
When should I have a will?
If you are over 18 and have accumulated money and assets, or are a parent, now is the right time to consult an attorney about your will. Don’t wait until it’s too late. Set up a consultation to discuss your will today.
