North Reading Wills Attorney
LAST WILL AND TESTAMENT TAILORED TO MEET YOUR NEEDS
Attorney Roberta A. Schreiber, who has specialized in estate planning for more than thirty years, has extensive experience in drafting Wills.
The Last Will and Testament is, for many people, their most important estate planning document. A Will is a written document that determines how your property will be distributed after your death. The Will names those family members or friends who will serve as Guardian for your minor children if both you and your spouse are deceased, and those family members or friends who will serve as Executor of your Estate. Your Executor is responsible for paying your debts, funeral expenses, administration expenses, legal fees, and estate taxes, filing your final income tax returns and estate tax returns, and distributing the remaining property to those beneficiaries named by you. Your Executor has the authority to use estate funds to retain an attorney, accountant, investment advisor, or a real estate broker, to assist with the administration of the estate.
If you wish, you may include funeral and burial instructions in your Will. You must be at least eighteen years old to execute a Will. The persons named as Executor and Guardian of minor children must also be at least eighteen years old. The Will must be signed in the presence of two Witnesses, and the Witnesses must sign the Will. A handwritten Will, known as a Aholographic Will@, will be accepted by the Probate Court as a valid Will, but only if the Will complies with State law, including the requirement that the Will be signed by two witnesses who were present when you signed the Will. If you plan on writing your own Will without the assistance of an attorney, do not ask a beneficiary of the Will to witness the Will. Your beneficiaries are the individuals named in your Will who will receive distributions from your estate. When a beneficiary is also a witness to a Will, that beneficiary's bequest (the property that you wish to leave to that person) will be eliminated. This is true even if that beneficiary/witness is your only beneficiary.
Your instructions to your Executor may include specific instructions about the distribution of personal items, such as jewelry, cars, and the contents of your home. If you wish, you can prepare a separate written memorandum for your Executor with more detailed instructions about the distribution of these personal items. The memorandum may be updated from time to time, without the assistance of an attorney. For the remainder of your estate, such as cash, investments and real estate, referred to as the "residue" of your estate, you have several options. You can direct your Executor to distribute specific amounts of money or specific properties, or to distribute the residue in terms of fractions or percentages, without dealing with specific assets. Many clients use a combination of these instructions.
Example:
A. I direct my Executor to distribute the sum of $10,000 to each of my grandchildren; and
B. I direct my Executor to distribute the remainder of the residue of my estate to my son, Jack, and my daughter, Jane, in equal shares, provided they survive me. If Jack or Jane does not survive me, I give his or her share of the residue of my estate to his or her children, in equal shares.
In the above example, if Jack or Jane wishes to buy the family home, he or she can do so, as long as he or she pays fair market value. If the value of the home is equal to, or less than, that child's share of the residue of the estate, the child can elect to have the real estate distributed to him or her, without having to pay anything to the other child. In the above example, if the value of the assets making up the residue of the estate, after the distributions to the grandchildren are made is $1,000,000 and the home is worth $500,000, the home can be distributed to Jack or Jane as their one-half share of the estate and the other child will receive the remaining $500,000. If both Jack and Jane want the family home, then there is a problem. Therefore, it is always a good idea to talk to your children about what they would like from your estate. One child may want the family home or the vacation home, and the other children may have no interest in either property. If you know that, you can include the appropriate instructions in your Will.
Example:
A. I direct my Executor to distribute my home, located at 1234 Main Street, North Reading, Massachusetts to my son, Jack, provided he survives me. If Jack does not survive me, I direct my Executor to sell the real estate and distribute the net sales proceeds to Jack=s children, in equal shares.
B. I direct my Executor to distribute an amount of money equal to the fair market value of my home, located at 1234 Main Street, North Reading, Massachusetts, to my daughter, Jane, provided she survives me. If Jane does not survive me, I direct my Executor to distribute an amount of money equal to the fair market value of my home to Jane=s children, in equal shares.
C. I direct my Executor to distribute the remainder of the residue of my estate to my grandchildren, in equal shares.
Note that in both examples, there are contingent beneficiaries named in the Will. This is very important. If a beneficiary predeceases you, you must decide who should be the beneficiary in his or her place. If you do not name contingent beneficiaries, there could be a Alapsed bequest@. In that case, State law determines who will receive this bequest, rather than you. Some clients do not wish to make outright distributions to one or more beneficiaries, for any number of reasons. They may have a child who has creditor problems or a child with severe medical problems. A grandparent may want to provide college funds for the grandchildren that will be managed professionally, or a parent may want to establish a retirement fund for his or her children. In these situations, the Executor is directed to make a distribution to a Trust established by the parent or grandparent prior to their death.
Example:
A. I direct my Executor to distribute one-half of the residue of my estate to the then Trustee of Jane Doe Supplemental Needs Trust, established by me, as Settlor and Trustee, to be held, invested, and administered for the benefit of my daughter, Jane Doe, provided she survives me. If Jane does not survive me, I direct my Executor to distribute one-half of the residue of my estate to my sons, Jack Doe and James Doe, in equal shares, outright and free of trust.
B. I direct my Executor to distribute one-half of the residue of my estate to my sons, Jack Doe and James Doe, in equal shares, outright and free of trust.
C. If either one of my sons predecease me, I give his share of the residue of my estate to his children, in equal shares.
Note that in the above example, the children are not treated equally. Although it is usually advisable to treat your children equally, so that there will be no hard feelings after your death, it is sometimes appropriate to treat your children differently. Remember that it is your property and your Will. It is your right to determine how your estate should be distributed. A child with special needs who has never worked will need the money far more than children with well-established careers. See the Article titled "Special Needs Trusts for the Adult Disabled Child" for suggestions about dealing with this problem. If you are estranged from a child and do not want to leave anything to him or her, you have the right to do so. With a properly drafted Will, you will be able to disinherit that child, without giving the child legal grounds to contest your Will. If you are a member of a "blended family", you will need both a Will and a Trust if you want to make sure that your current spouse will be supported after your death and that your children by a prior marriage will inherit some, or all, of your estate after you and your spouse are deceased. See the Article titled "Estate Planning for the Modern Blended Family" for more information about this type of planning. You will also need a Will and a Trust if you wish to minimize or eliminate liability for estate taxes. There is more detailed information about the different types of Trusts that are appropriate to deal with the situations described above on the Trust page and in the Article titled What Type of Trust is Right for Me?
There is no "one size fits all" Will. Whatever your situation is, Roberta has the experience, knowledge, and skill to tailor your Will to meet your goals and to suggest additional documents if a Will alone cannot accomplish your goals. It is likely that Roberta has dealt with circumstances similar to yours in her thirty years of practice, and will be able to quickly identify potential areas of concern and determine how to address them. For guidance with drafting your Last Will and Testament and other estate planning documents, contact us to schedule an appointment.
