Attorney Roberta A. Schreiber has specialized in estate planning for more than 30 years and has extensive experience in drafting wills. Your last will and testament may be your most important estate planning document. If you die without a will, Massachusetts laws determine who will manage your estate and who will inherit your property.
With a will, you create a legally binding document that determines who will manage your estate after your death, who will inherit your property and who will be appointed as guardian of your minor children if both you and your spouse are deceased.
There is still a way without a will, but it is not the fastest or most cost-effective one. With a will, you can leave your family direction as to your last wishes and create a financial plan for what is to come next. Learn how a will can add value to your life and the lives of those you love by calling 978-664-2552 or sending a brief email. We will schedule an initial consultation so that you can receive advice that is tailored to you and straight to the point so you know your options and can act on them fast.
Last Will And Testament Tailored To Meet Your Needs
In your will, you will name one or more family members or friends who will serve as personal representatives of your estate. Under the new Massachusetts Probate Code, the term “personal representative” has replaced “executor,” “executrix,” “administrator” and “administratrix.” Your personal representative is responsible for paying your final debts and bills, funeral and burial expenses, the costs of administering your estate, income taxes and estate taxes, and filing your final income tax returns and estate tax returns (if required). After these payments are made, the personal representative will distribute the remaining property to those beneficiaries named by you in your will. Your personal representative has the authority to use estate funds to retain an attorney, an accountant, an investment adviser, a real estate broker or other professional, as needed to assist with the administration of the estate.
Issues A Will Can Resolve
Your will may deal with other issues that are important to you and your family. Many individuals have strong feelings about organ donation, cremation, and funeral and burial arrangements and include appropriate instructions in their wills for family members to follow. One of my clients has detailed instructions about the party that will take place after his death instead of a funeral or memorial service, including the music list that his jazz band will play. Another important issue is your pet. If you have a pet, you should name a family member or friend who will take custody of your pet, as well as leaving sufficient funds to that person to care for your pet. A new issue that has arisen in recent years is the ownership and control of your electronic and online data, accounts, and social networking sites after your death. If this is a concern, your will should clearly state that your personal representative is authorized to use, change, or terminate your electronic data, accounts, and websites. Some companies will deal only with your personal representative after your death, so it is important to include this provision in your will.
Drafting And Signing Your Will
You must be at least 18 years old to execute a will. The persons named as personal representative and guardian of your minor children must also be at least 18 years old. The will must be signed in the presence of two witnesses, who must sign your will. You and your witnesses should sign in the presence of a notary public, who will notarize your will. A handwritten will is valid, as long as it complies with Massachusetts laws, 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 will without the assistance of an attorney or using a form that you have found online, be careful about who your witnesses will be. The beneficiaries of your will should not be witnesses. When a beneficiary is also a witness to your 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.
You Can Leave Written Instructions Regarding Personal Items
Your instructions to your personal representative may include specific instructions about the distribution of personal items such as jewelry, cars, boats and the contents of your home (referred to as “tangible personal property”). Many people are not sure when they draft their will who should inherit their personal property or they change their minds after their will has been signed. The new Massachusetts Probate Code now allows you to prepare a separate written memorandum for your personal representative with detailed instructions about the distribution of these personal items. Under the new probate code, the memorandum is legally binding, even if you prepare it before or after you sign your will. You do not need the assistance of any attorney to prepare the memorandum. Make sure that your instructions are clear, that you sign the memorandum, and store it with your will so your personal representative will find it. If you change your mind in the future, destroy the original memorandum and prepare a new one, so there is no confusion.
You Have Options On How You Want Your Estate To Be Distributed
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 personal representative to distribute specific amounts of money or specific properties to family members, friends and charities, or you can instruct your personal representative to distribute the residue in terms of fractions or percentages, without dealing with specific assets. Many of my clients use a combination of these instructions.
- I direct my personal representative to distribute the sum of $10,000 to each of my grandchildren
- I direct my personal representative to distribute the residue of my estate to my son, Daniel, and my daughter, Samantha, in equal shares, if they survive me. If Daniel or Samantha 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 Daniel or Samantha 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 total value of the estate property, after the distributions to the grandchildren are made, is $800,000 and the home is worth $400,000, the home can be distributed to Daniel or Samantha as their one-half share of the residue of the estate and the other child will receive the remaining property, with a value of $400,000. If both Daniel and Samantha want the home, then there is a problem. For this reason, 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.
- I direct my personal representative to obtain an appraisal of the fair market value of my home located at 1234 Main Street, North Reading, Massachusetts, from an appraiser licensed by the Commonwealth of Massachusetts.
- I direct my personal representative to distribute title to my home, located at 1234 Main Street, North Reading, Massachusetts, to my son, Daniel, if he survives me. If Daniel does not survive me, I direct my personal representative to sell the real estate and distribute the net sales proceeds to Daniel’s children, in equal shares.
- I direct my personal representative 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, Samantha, if she survives me. If Samantha does not survive me, I direct my Personal Representative to distribute an amount of money equal to the fair market value of my home to Samantha’s children, in equal shares.
- I direct my personal representative 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 inherit that beneficiary’s share of your estate. If you do not name contingent beneficiaries, there could be a “lapsed bequest.” In that case, Massachusetts intestacy laws will determine 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 and permanent medical problems or disabilities. A grandparent may wish to provide college funds for his or her 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 personal representative is directed to make a distribution to a Trust established by the parent or grandparent prior to his or her death.
- I direct my personal representative to distribute one-half of the residue of my estate to the then trustee of Samantha Smith Supplemental Needs Trust, established by me, as settlor and trustee, to be held, invested, and administered for the benefit of my daughter, Samantha Smith, if she survives me. If Samantha Smith does not survive me, I direct my personal representative to distribute one-half of the residue of my estate to my sons, Daniel Smith and Andrew Smith, in equal shares, outright and free of trust.
- I direct my personal representative to distribute one-half of the residue of my estate to my sons, Daniel Smith and Andrew Smith, in equal shares, outright and free of trust.
- If either one of my sons predecease me, I give his share of the residue of my estate to his children, in equal shares.
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?.
Tell Us About Your Massachusetts Estate Planning Needs
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 more than 30 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.