Why if you Need a Will, in Massachusetts – You need an Attorney!
If you’ve been thinking about a will, and wondering whether or not you should have one, the answer is almost invariably yes! Having a will drawn up is often treated on par with getting a route canal. It’s one of those things we all know we should get done, but it’s also one of those things most people tend to put off for a later day.
If you’re asking yourself the question of whether or not you need a will, the answer is easy. Do you have one already? If not, yes, you need one. If you do have a will, the next question you need to ask is “was my will drawn up by a qualified Massachusetts’ attorney?” If the answer is no, you still need a will.
Massachusetts is absolutely conservative, when it comes to its laws of probate. This means that any will that is not drawn up and executed following every single detail of Massachusetts probate law is worthless, and will not be honored upon your death. Your estate will be treated and dispersed exactly the same as it would if you had no will, and this is true regardless of how clear your will might be. There are a plethora of different self-help websites online, all stating the ease with which you can draft your own Massachusetts will. While this may true for many states, it is not true of Massachusetts.
Massachusetts probate courts do not honor holographic wills. This means that a will drawn up by a person is not treated differently, simply because he or she did it on his/her own, without the help of an attorney. Other states will honor these. Massachusetts does not. A single mistake or misinterpretation of Massachusetts’ probate law (which is complex) will almost invariably result in your will not being honored, upon your death. In the meantime, these same websites that pander to the self-help individual, all include lengthy legal disclaimers, disclaiming any responsibility if your will is not honored in Massachusetts probate court.
If you suspect that your will may be contested, this admonition to have it drafted and executed by a qualified attorney is even more crucial. During a will contest, every step taken, in the drafting and execution of a particular will is examined, in detail. One false step, and the will can be invalidated by the probate court, and your estate will be treated as though you died intestate. This is a high price to pay to avoid a few dollars, and – ultimately – the ones who end up suffering the brunt of this mistake in judgment are your remaining loved ones who end up mired in an inescapable conflict.
If you are in need of a will or have any questions about probate or estate planning, we can help you. In addition to a will, you will very likely benefit from any one of a number of various trusts. For example, it is often useful to include a number of testamentary trusts in your will, and to dovetail these with any existing trusts you may have. We can help you see the big picture, and help you to optimize the structure of all of your assets, both while you’re living and when it is time to probate your estate.
Your initial consultation is absolutely free and entirely confidential! Call us today!
What is “Intestate” vs. “Testate”?
If you die intestate, it means you either die without a will or without a valid will. When we say “valid” will, we mean one that the probate court honors. If you die “testate,” on the other hand, it means you die, leaving behind a valid will. What a lot of people don’t realize is that if you die intestate, without a will, every state, including Massachusetts, already has in place a whole array of laws known as the laws of intestacy. These laws describe exactly how your estate is to be dispersed among your heirs, should you die without a will.
As some attorneys like to say, it is as if the state of Massachusetts has already drafted a will for you. Should you put forth a little effort to hire an attorney, you can devise any will you wish, and decide exactly how your estate is passed on. However, if you do not put forth this effort, you should know that the state has already done it for you, and you had better believe that if you were around to see it you would be about as happy as anyone who has any one-size-fits-all structure forced upon them. In other words, you wouldn’t be happy at all, and your loved ones will be even less so.
You might think to yourself that you don’t really need a will or that it won’t really matter, but this is wishful thinking. As we mentioned toward the outset, a common trend among estate planners is to use probate avoiding devices. This makes it easier for those you’ve left behind to gain relatively immediate control of those portions of your estate that you want them to have. The reason for this is because it can take many, many months, even years, in some cases, after your death, for your loved ones to finally acquire the assets you’ve left for them. This is because, probating an estate can take considerable time. In the meantime, your loved ones will face immediate expenses, not the least of which is paying for your funeral and to have you cremated or buried. It’s unfortunate, but everything in this world costs money, even dying.
Thus, it isn’t enough just to have a will. What one really needs is an estate plan. Now, for those with relatively few assets, this can be a simple estate plan. For those with considerable assets, a more complex and diverse estate plan is often in order. However, even a simple estate plan should include, at the very least, one or two trusts and/or a funeral insurance plan or two, to cover the immediate expenses your loved ones will face in paying for your funeral and burial. Life insurance and trusts are examples of probate avoidance devices (for a greater discussion of “probate avoidance mechanisms” see the article below). The assets contained in either “avoid probate” and are not considered a part of the decedent’s (the person who died) estate. These are the devices or mechanisms you want to place your assets in, when you would like your heirs to have immediate access upon your death. At least, that is one use.
What happens though, if you die with a will, one that is very clear, but it is found to be invalid? Actually, this happens more than one might think. The answer is, your will and wishes are tossed aside, no matter how clear your wishes may have been, and your estate is chunked apart – according to the Massachusetts’ laws of intestacy. There is no bonus or second-place ribbon awarded, for almost getting it right. You either have a valid will, or you do not. If you do not, the probate court will determine that you died intestate, and disperse your estate accordingly. We have seen it time and again. People who decided they would draft their own wills, and who – frankly – did a pretty good job at it. Unfortunately, they messed up one or two things and the will is challenged and found to be invalid. It doesn’t end there. We’ve seen people who also decided to draft and attempt to form their own trusts, and mess these up as well. This leads to some very convoluted scenarios, where the person’s will is invalid, but their trusts are valid, or where their trusts are invalid, but their will is valid, leading to some very unfair dispensations of their estates, ones which clearly contadict the decedent’s wishes.
If you take nothing else away from this article, we hope it will be that you are the one in the driver’s seat. The only thing you need to do to avoid dying intestate, is to execute a valid will. We can help you do this, and so much more!
Why not enact an estate plan? We can help you put in place an estate plan that is appropriate to your particular situation. Call us today! Your initial consultation is absolutely free, and – as always – is one hundred percent confidential!
Probate in Massachusetts
After a person dies, the Massachusetts probate court first determines if the decedent (person who died) left behind a validly executed will. If the decedent did die with a valid will, the will is submitted to the probate court for probate. As we discussed above, in such a case a person died testate. However, if the probate court determines that the decedent died without a valid will, then the decedent is said to have died intestate, and the court must then determine the decedent’s heirs so that the estate can be distributed according to the Massachusetts’ laws of intestacy.
Next, the probate court appoints a personal representative. If the personal representative appointed is a person who was named to act as such in a will, then the person is called an executor. If there is no will, or the will does not name a personal representative, the person is appointed by the court and is called an administrator. Whatever the personal representative is called, he or she is tasked with overseeing the probate of the decedent’s estate.
If things go like they are “supposed” to, the personal representative will see that the funeral is paid, the decedent’s outstanding debts are paid, and the estate is divided either according to the will or the laws of intestacy. You’ll notice the word “supposed” is in parenthesis. In reality, anything can happen. It may be that certain heirs do not trust the person who has been appointed as the personal representative. They may think the personal representative has done something illegal or immoral with the estate assets. In such cases, these can petition the court for the removal of the personal representative. Other times, certain heirs may believe that the will offered for probate is not the most recent will or that something has been changed in it. This often leads to what is known as a “will contest.” If this happens, it can result in a fairly significant amount of ligitation, with a full-fledged trial.
These steps just listed above, are the basic steps taken in the probate of an estate in Massachusetts. Of course, this is a very basic list, and – in reality – Massachusetts probate law is very complex. One thing you should bear in mind is that, when it comes to probate matters, time is of the essence. If you think a personal representative is up to something or cannot be trusted, your time to act is limited. If you think the will offered for probate is suspicious, your time to act is, again, limited. You must act immediately!
If you have any questions about the probate of an estate, call us today. We are always happy to answer any questions you may have, and – as always – your initial consultation is completely free and one-hundred percent confidential.
The Probate Avoidance Trend
The probate process can be very time consuming. In general, it is common for it to take the better part of a year, and if will contests and personal representative removals are involved, it can take even longer. In the meantime, there may be a surviving spouse or others who are relying on their inheritance to be able to just get by. Aside from the great amount of time that it can often take to acquire one’s inheritance, probate can also, at times, result in a person’s estate being divided in ways that he or she did not intend. As we’ve already explored above, this can happen when a will is not drafted or executed properly.
Probate avoidance mechanisms avoid all of this. They literally avoid probate, which is why they are called “probate avoidance” mechanisms or devices. A trust is one example of a probate avoidance mechanism. Any assets held in trust, are not considered to be part of the estate. Thus, they are not part of the estate that is probated. If you place assets into a trust and name one or more people as beneficiaries, those beneficiaries do not have to wait for the probate of the estate to occur to begin benefiting from the trust.
Another example is a life insurance policy. A person named in a life insurance policy, the beneficiary, receives the pay out, quite separately from the probate of the estate. The trend among estate planners is to use probate avoidance techniques. As we noted above, this trend does not necessarily emanate from estate planners themselves, per se, but from a desire to provide clients with what they want. What clients want is control over their assets, even after death. If you think about it, this is the entire goal of a will. It is a legal tool that allows one to control his or her assets after death. Probate avoidance devices can, at times, allow even more control over one’s assets upon death, and this, no doubt, explains their popularity.
Some bank accounts also act as probate avoidance devices. For example, certain jointly held bank accounts automatically become the entire property of the individual remaining alive, upon the death of the other. This can also be true in the case of real property or real estate as well. These tools can make devising of one’s assets much easier, and can certainly make the inheritance of such assets tremendously easier for their respective beneficiaries.
If you have questions about probate avoidance and how it can play an important part in your estate plan, call us today. We are always happy to answer any estate planning question you may have.