Your Last Will and Testament is an important estate planning document that most adults should have and update from time to time. Although I have never met anyone who does not know what a Will is, I do hear many misconceptions from clients about Wills. Here are five facts to know about Wills.
- Having a Will does not mean that your estate will avoid probate. Many times when I am meeting with new clients they tell me that they don’t need to worry about probate because they have Wills. Whether or not you have a Will is irrelevant to the question of whether or not your estate will need to be probated. Probate assets are accounts or real estate titled in your individual name that do not have a beneficiary designated to receive the asset at the death of the owner. Your Will controls the distribution of your probate assets and does not affect your non-probate assets. For example, if you have a Will that leaves your estate (i.e. probate assets) to your spouse and a life insurance policy that names your sister as the beneficiary, the life insurance proceeds will be distributed to your sister not your spouse. A probate proceeding will be necessary to transfer any probate assets to your spouse under the terms of your Will.
- In Massachusetts we do not use joint Wills; each spouse needs to have his or her own Will. A joint Will is one in which two people (typically a husband and wife) sign one document that purports to be the Will of both signers. Massachusetts does not recognize joint Wills and even if it did, I would not advise creating a joint Will. A joint Will becomes irrevocable following the death of the first spouse, meaning that the surviving spouse could not change the Will. As we know, life is long and things change. The best decisions made today may be wholly inappropriate ten years from now. Robbing the surviving spouse of the flexibility to update the Will based on family, financial and other situations that arise following the death of the first spouse is likely to result in some very bad outcomes.
- A Will is the most common way to name a guardian for your minor children. If you have minor children, you will designate a guardian and conservator for your children in your Will. The guardian is the person who will have actual custody of your children and will make decisions about your children’s health care, education, religious upbringing, and residence. The conservator is the person who will have legal authority over your child’s money. Your child’s money is the money he has in the bank, in a Uniform Transfers to Minors Account ( UTMA) or a Uniform Gifts to Minors Act (UGMA) account, or his inheritance if assets are left directly to the child instead of in trust (note, this is generally a bad plan). If you leave assets to your children in trust, the Trustee will manage and control the trust assets, not the conservator.
- The Personal Representative named in your Will has no authority to act until the Probate Court approves the Personal Representative’s appointment. The Personal Representative (formerly called Executor in Massachusetts), is the person you name in your Will to settle your estate. It is not uncommon for a person who is named as the Personal Representative in a Will to believe that she can present a death certificate and the Will to the bank or other financial institution and that this will allow her to access the decedent’s bank accounts on behalf of the estate. This is not the case. The Personal Representative does not have authority to act until the Probate Court approves the appointment and issues “Letters of Authority.” Petitioning the Court for that approval and obtaining Letters of Authority is the start of the probate process.
- A Will must be properly signed and witnessed. A document that is titled “My Last Will and Testament.” but is not properly executed will not be recognized as a Will by the Court. In order to be recognized as a valid Will in Massachusetts, the Will must be in writing, signed by the testator (the person making the Will), and witnessed by two different people. A Will does not need to be notarized in order to be valid. However, estate planning attorneys commonly attach a self-proving Affidavit to a Will so that the Will may be allowed by the Court without requiring the testimony of the witnesses following the death of the testator. The self-proving Affidavit recites the requirements of a valid Will: the testator is over age 18, is of sound mind, intends to sign his Will, is signing it willingly and voluntarily, and is not under any constraint or undue influence. The self-proving Affidavit does need to be notarized.
If you are over 18 years of age and do not have a Will, contact an experienced estate planning attorney to advise you as to the best plan for your particular situation. You can be sure that creating a Will will be part of those recommendations!
Attorney Suzanne R. Sayward is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. She is a partner with the Dedham firm of Samuel, Sayward & Baler LLC. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.