The team of attorneys at Carter DeYoung often hear the question, ‘Do I Need a Will?’ The short answer is Yes. The long answer is a Will is just the beginning, regardless of the number or value of the assets involved.
It’s important to realize a Will is a legally-binding statement indicating who will receive the assets upon a persons death. The Will also designates a ‘personal representative’ (formerly referred to as executor/executrix or administrator) the one(s) who will execute or distribute the property according to the decedent’s wishes. However, the Will only covers probate property.
What is Probate?
Probate is a court-supervised legal process to distribute the assets of a Will when someone dies. When property goes to probate, a decedent’s belongings are passed along to the people named in the Will. Probate typically takes close to a year to complete whether here in Barnstable County or anywhere. Many things take place including verification that the Will is valid, changing ownership (title) of real estate, bank accounts, stocks and/or bonds (without right of survivorship) and even paying creditors. However, there are several types of property that are not included in probate, such as life insurance proceeds that name a specific beneficiary or beneficiaries – common are 401(k)’s and IRA’s, as well as real property that is owned jointly and property set up in a trust. There are also costs associated with Probate.
Reasons Why You Should Have A Will
First, with a Will you can direct what you own (also known as your estate) and where it will go after your death. If one dies without a Will the estate would be distributed according to Massachusetts state law, and may or may not align with your wishes.
A will can be a much simpler means of carrying out one’s wishes about how assets should be distributed.
Many people try to avoid probate and the need for a will by holding all of their property jointly with their children. This can work, but often people spend unnecessary effort trying to make sure all the joint accounts remain equally distributed among their children. These efforts can be defeated by a long-term illness of the parent or the death of a child.
The second reason to have a will is to make the administration of your estate run smoothly. Often the probate process can be completed more quickly and at less expense to your estate if there is a will. With a clear expression of your wishes, there are unlikely to be any costly, time-consuming disputes over who gets what.
Third, only with a will can you choose the person to administer your estate and distribute it according to your instructions. This person is called your “executor” (or “executrix” if you appoint a woman) or “personal representative,” depending on your state’s statute. If you do not have a will naming him or her, the court will make the choice for you. Usually the court appoints the first person to ask for the post, whoever that may be.
Fourth, for larger estates, a well-planned will can help reduce estate taxes.
Fifth, and most important, through a will you can appoint who will take your place as guardian of your minor children should both you and their other parent both pass away.
Filling out a worksheet will help you make decisions about what to put in your will. (To download ElderLawAnswers’ worksheet, click here.) Bring it and any additional notes to your lawyer and he or she will be able to efficiently prepare a will that meets your needs and desires.