Last Will and Testament
Understanding a Last Will and Testament in Massachusetts
The core estate planning document that almost everyone needs is a will, or last will and testament. This is the document in which you name a personal representative and guardian for your minor children. It is also the document which identifies who receives most of your assets after you pass.
If you do not have a will, Massachusetts state law will decide all of these things for you. Below are answers to some common questions about wills in Massachusetts.
What is a Will and When Does it Take Effect?
Your last will and testament is a legal document that comes into effect after you pass and when it is approved by the probate court. Before that it is just a piece of paper, which you can change any time you wish.
Because it is only effective when it is approved by the probate court, it is important that your family know you have a will and where to find it.
Who Can Make a Will?
Anyone of sound mind can execute a will. Sound mind means only that you are aware of who you are, what you own, and who the people are that you are naming in your will. Even people suffering early stages of dementia can be considered legally competent to make a will.
If you are receiving medical treatment for a condition that could affect your memory or thinking, it may be a good idea to have your doctor provide an opinion that you are legally competent. This will help if there ever is a challenge to the will.
What Assets Will Pass Without a Will?
Anything you own jointly with your spouse will pass automatically to the surviving spouse. For most people, this includes your home, other real estate, and joint bank accounts.
Other assets that can pass outside of a will are those that have a named beneficiary. Most commonly these are investment accounts and life insurance policies. Your bank or financial institution may also allow you to fill out a "payable on death" form to transfer accounts to a designated person upon your death.
The above assets may make up the majority of your estate, but it is still important to have a will. There may be other personal property to divide, and if you have young children you will still need a will to appoint a guardian.
Can You Make a Will Without a Lawyer?
You can write a will without a lawyer, as long as it is executed (signed) according to Massachusetts legal requirements. There are some important things you may not be able to do properly without legal advice, however.
For example, if you are leaving any children out of your will there is specific language you must use for that to be valid. If you are not leaving everything to your surviving spouse, you will need help making sure he or she can't undo your estate planning by claiming a spousal share.
You also may not know the correct wording to give your personal representative the authority they need to immediately attend to things like funeral expenses and arrangements and disposition of other property.
Can I Change My Will?
You can change your will any time, as long as you are of sound mind and the new document is executed properly under Massachusetts law. You can re-write the entire will if you want major changes.
If the change is simple, you can often do this through a codicil to your will. This is generally simpler and less expensive than doing your entire estate plan over. You can also use a trust to provide income and support for your surviving spouse during his or her lifetime but preserve the underlying assets for your children.
What is the Difference Between a Will and a Living Trust?
A trust is a document that can take effect while you are still alive. Like a will, it can direct who gets what from your assets. it can also do much more. You can give your trustee discretion to manage or distribute assets. You can specify an age or life event like graduating college at which your children can receive their inheritance.
A will only becomes effective after you pass, and only dictates representatives, guardians, and disposition of assets. If you have minor children who inherit, a will does not name a trustee for their assets, which someone will have to do separately through the Probate Court.
Where Should I Keep My Will?
Your family will need your originally signed will to file with Probate Court, so you should keep it in a safe place. Many people use safe deposit boxes at their bank. Others keep it in a fireproof safe in their homes along with other important documents.
The lawyer who wrote your will should also keep a copy of the signed documents in their records. If something happens to your original will, you should be able to return to their offices to sign a new copy.
Remember that if your family does not know you have a will, or does not know where to find it, they will not be able to file it with the Probate Court. This means all the work you did do create your estate plan could be for nothing. As soon as you finalize your documents, you should tell the person you named as personal representative where you are keeping those documents so they know how to find them.
We are ready to help. Honestly, this topic is way harder to think about than it is to actually do once you decide to take the first step. We have a simple process for getting you from wherever you are now to executed and final documents and peace of mind. It starts with an initial consultation, which is absolutely free. You can use the button below to schedule your consultation, or simply give us a call at 781-784-2322, or fill out our web form.
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