Wills

My Estate Planning Practice – Serving Clients in Lowell, Tewksbury, Middlesex County, and the Surrounding Towns and Counties

Wills specify how a person’s property will be distributed after death.  Without a will, state law controls how property is distributed.  This is the case even if a person has expressed wishes to the contrary, such as if they wanted a specific person to receive a piece of jewelry, or if they did not want a family member to receive any of their assets.

Wills are also important for another critical aspect – to prevent family members from fighting over assets.  For example, without a will, if a parent dies without a spouse, each child will be entitled to a proportionate share of the estate.  But how will items such as family heirlooms be divided? These important questions can all be resolved through a will.

At my office, I work with clients to carefully understand their estate planning wishes, and then create affordable plans to carry out such wishes in an efficient manner. That way, disputes can be minimized or avoided, and assets can go to the intended beneficiaries.

If you do not have a will or estate plan, please call me so that I can help you legally document your wishes.  In the interim, the sections below discuss different aspects of estate planning.

What is the purpose of a will?

Wills specify how an individual’s assets are to be distributed  upon death. A will can be made by any competent individual who is over the age of eighteen.  To be considered valid- in Massachusetts, a will must be in writing, signed by the individual who’s wishes it represents (this person is known as the testator), and signed by two witnesses.

Different Types of Wills

There are several different types of wills to choose from:

  1. Living Will – A living will does not provide for the distribution of assets; rather its purpose is to provide health care providers with the individual’s wishes or instructions concerning ongoing or termination of medical treatment if the person is suffering from a terminal illness or facing death and the person is unable to communicate their wishes for healthcare. Medical treatment includes such things as, life support, feeding tubes, etc.
  2. Simple Will – This is the most common form of will. It is created by statute and essentially deems how assets will be distributed after an individual dies. Often, by statute, everything is left to a surviving spouse. If there is no surviving spouse, the statute specifies the order of who shall inherit property, and in what percentage.
  3. Pour-Over Will – A pour-over is a part of a will that consists of specific provisions that specify that some, or all, of a deceased person’s assets will be placed into a trust created by the deceased person prior to death, and thereafter such assets will be managed and distributed in accordance with the terms of the trust.

Amending a Will

Will amendments are called codicils. Codicils must be specific as to what is being changed in the will, and they must be executed in the same manner as a regular will. It is important to note that this process is generally used to make minor changes to a will; more substantive changes usually require a redrafting of the entire will.

Personal Representative

A personal representative can be named in a will, or one can be appointed by the court (usually a family member) after a person has died. Generally, the personal representative appointed in the Last Will and Testament will be qualified to serve so long as he or she is not incapacitated, unwilling to serve, or dead. If the personal representative cannot serve, a will may name an alternate. The named personal representative may also appoint an alternate to serve as a trustee without court approval. Additionally, the adult children may appoint a qualified personal representative or trustee to serve. If no children are present or are underage, the court will make such appointments.

Personal Representative Powers and Duties

Powers can be limited by the will. Otherwise, decisions are final unless it can be shown that the reasonable representative, in the same position, would not have executed the decision. The powers and duties, unless limited, allow a personal representative without court approval to:

  • Retain property from the estate, including property that he or she may have a personal interest in.
  • Satisfy any charitable pledges
  • Make any repairs necessary, care for, or insure, personal property of the estate – this includes paying any shipping or related expenses.
  • Abandon worthless property
  • Make investments
  • Sell, exchange, or dispose of property either through public or private sales
  • Lease property
  • Pay, compromise, or contest claims made against the estate or controversies that may arise.
  • Reorganize, merge, or consolidate and business whose securities are part of the estate.
  • Mortgage or encumber property that is part of the estate.
  • Distribute property to devisees or heirs
  • Perform any other acts that may be deemed necessary or appropriate to administer the trust.

Who has rights to property of the decedent when there is no will?

When a person dies without a will, they are said to die intestate.  In such cases, state statute specifies who is entitled to inherit property.

Spousal Rights – So long as there are no liens or debts on the estate of the deceased, the entire estate will pass to the surviving spouse. Should there be any unpaid debts or encumbrances the spouse shall receive the residence, personal property, this means property that was not held for a business purpose, the greater of $300,000 or ½ of the balance of the estate, and an interest in the remaining portion of the estate. If a personal representative of the estate, who is not the spouse, deems that the will is uneconomical, the entire estate will pass to the surviving spouse. Additionally, within 6 months of the reading and execution of the will, a surviving spouse may waive his or her distributions from the estate.

No Surviving Spouse – If there is no surviving spouse to take the estate, the next in line are the deceased’s children. The estate passes in equal portions to the surviving children, or to a representative of non-surviving children. In cases where there are no surviving children, the estate will go to those individuals entitled to receive as if no valid statutory will existed.

If an individual who is to receive a portion of the estate does not survive the Testator by at least 30 days, he or she will be said to have predeceased the individual for purposes of the estate distribution.

Trusts

Where a trust has been established, the property will be managed and distributed according to the trust unless the personal representative deems it uneconomical. If it is deemed uneconomical the estate will be distributed as if no trust existed in accordance with the distributions mentioned above.

If the child receiving a distribution is under age 23 or the age specified in the will, the property will be held in trust until he or she is of-age to receive the property. The needs of the child, if under 23, will be taken into consideration when determining how much money will be released for health, education, and support prior to the age of 23. The trustee has the discretion to distribute to a beneficiary at any time. A trust will be terminated once it has been fully distributed or continuing the trust becomes uneconomical.

If the individual receiving the distribution cannot effectively manage the distribution because of illness, disability, drug or alcohol abuse, or other reasons the personal representative can choose to distribute the property in part and place the rest in a trust to be released at their discretion.

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