The Indomitable Will: Basics of the Estate Plan Core Document

Almost everyone has heard of a Will and has an idea of what a Will is, but like most legal topics that have become ingrained in popular culture, sometimes as lawyers we have to help clients separate fact from fiction. This is especially true where the law can vary from state to state; this blog deals exclusively with Wills drafted in Massachusetts. Forget what happened on that TV show or in that book or movie you may have seen, this is the real deal on Wills:

What is a Will?

Also called the Last Will and Testament, the Will is a written document that takes effect when a person dies. From that starting point, there are things that a Will can do and ought to do, but every Will is different. Typically, a Will is subdivided into different provisions, often called "articles".

What can a Will do?

Every will should contain a provision that in some way distributes all of the assets from the estate of the decedent (the person who wrote the Will and then died) to another person or entity. This is what most people think a Will does. However, a Will can name a Personal Representative to handle the estate's affairs. You may have read my article on how to choose a Personal Representative. If not, you can read it here for more information on Personal Representatives and their powers. A Will can also determine how liabilities and funeral expenses are paid and make decisions regarding the guardianship of minor children among many other important decisions that will need to be determined once someone passes away.

So what are some things to think about before drafting a Will?

Distribute Property

As mentioned, the Will can distribute property or assets to whatever persons or entities the testator (the person signing the Will) desires. This can be done through two ways: Specific bequests, which are gifts of specific assets or property to specific people; and general bequests, which are distributions of liquidated assets, usually given as a percentage or fraction of the total liquidated assets. For example, "I give my son, John Smith my red, 2006 Corvette," is a specific bequest and, "I give 1/3 share of my estate to John Smith," is a general bequest. There could be an entire blog article just dealing with specific bequests, but in short, if the property isn't owned at the time of death, then the bequest is "adeemed", or nullified. There is no similar concept with general bequests, other than the estate having no assets to distribute. Finally, the Will can refer to a separate list of specific bequests that the testator can continue to edit until the moment of death and said list will be admissible as part of the Will if it is found and submitted to Probate. Said list can even be handwritten, which is not allowed for the Will document itself.

Personal Representative

Again, you can read the previous blog article here for more information on Personal Representatives and their powers. If the testator really does not have anyone who they can trust enough to name as a Personal Representative, the Court can determine one for the estate. However, this will incur additional expense and delay on the part of the estate and is not recommended.

Guardians of your Galaxy

For parents of young children, sometimes choosing a guardian for their kids takes precedence over the distribution of assets. This can be a really easy choice for some, for others without much close family, it can be kind of scary. One piece of advice: pick someone who will raise your children like you would raise them. Don't worry about the financial aspect as much; you can set up a trust or purchase life insurance (or both, more on this at a later date) to cover the cost of raising a child. It is also worth mentioning that the person raising your child does not have to be the person managing your child's inheritance and finances.

Throw Mama from the Train

For some, a Will is a way to keep assets and property out of the hands of a family member who they never really got along with. This can be done with something called an "Intentional Omission Clause." This can also be useful where a family member has already received a substantial gift from the testator before their death, and the testator wants to make things even among other family members. A few words of caution though: Spouses and minor children are entitled to a statutory share of the estate, regardless of any intentional omission. There are ways to properly "disinherit" your spouse without triggering the statutory share provision; however that topic is far too involved for this blog post. Simply put, it cannot be done with a simple Will.

Pour Some Sugar (On your Trust)

Finally, some people forego the Probate Court process almost entirely with what is called a Pour-over Will. This allows all of the assets to pass into a separate Trust, to be managed by a Trustee without Court supervision. The Trust can be established by the Will itself or by a separate document, which will be addressed in detail in a future blog post. There will be some work that needs to be done with the Court, but the estate can be closed out significantly faster where all assets are passing into a Trust versus being distributed to the individual heirs (actually, they are called "devisees," but it's just easier to refer to them as heirs here).

To Summarize:

The Will is an important document to any estate plan, and perhaps the central document. It is important to know what can be done with a Will, and when you may need something more, such as a Trust or another estate planning tool.

If you have any questions about drafting a Last Will and Testament in Massachusetts or want a free consultation, please contact Attorney Jacob Snyder to schedule an appointment.

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