By Attorney Maria Baler (June 2011)
Only about half of the people who die in the United States each year have a Will. Your Last Will and Testament is the roadmap for determining what happens to everything you own and those you care about when you die. Don’t miss the opportunity to create this roadmap for those you leave behind.
A Will can be a simple document, but nonetheless is one that should be created by an estate planning attorney. Despite the availability of do-it-yourself Will forms found in books or on the Internet, Wills are documents that are governed and interpreted under the law of each particular state and should be created by an attorney to ensure your intentions are fulfilled. A poorly drafted Will often results in Court involvement, thereby delaying the distribution of assets to your heirs and creating significant additional expenses.
Here are five important reasons to meet with an estate planning attorney to create a Will today:
1. Name a Guardian/Conservator for Minor Children. Most parents do not want to think about what would happen to their minor children if they were no longer around to care for them. A Will can provide important instructions about the care of these children after a parent’s death. This is an important issue that all parents should consider thoughtfully and take steps to address.
Creating a will allows parents to name the person or persons who will serve as a child’s legal guardian and conservator upon their death. A legal guardian is the person charged with caring for the child, determining where the child will live, where he will go to school, and making all other decisions regarding the child’s health care, religious upbringing, etc. A conservator is the person who will manage the child’s assets for the child’s benefit. Many parents create a Trust to hold and manage assets for minor children to ensure a child does not receive full access to and control over assets before an appropriate age. However, if a Trust has not been created, a conservator will manage the child’s assets until the child turns 18.
Without a Will, the Court will decide who will care for a minor child whose parents are no longer living and who will manage the child’s inheritance. If you want to choose who will care for your child and his inheritance if you cannot, write a Will today.
2. Make it Clear Who Should Receive Your Assets. Any assets you own in your name will be governed by your Will at your death. Your Will can specify who will receive your tangible property (for example, your car or your prized stamp collection) and your other assets (such as real estate, bank accounts, etc.). If a designated recipient is not living when you die, your Will can state who will receive the property instead. If you have joint bank or investment accounts, your Will can confirm that you want those assets to be given to the surviving joint owner, or in the alternative distributed according to the terms of your Will.
Without a Will, state law determines who will receive your assets. In many cases, the way the law would distribute your assets is not the way you would want them to be distributed. A Will ensures your assets are distributed to those people or charities you wish to benefit.
3. Choose an Executor You Can Trust. Your Will appoints the Executor of your estate. This is the person responsible for identifying your assets after you die, paying your debts, filing your final income tax return, paying any income or estate taxes that may be due, and distributing your remaining assets according to the instructions in your Will. Careful selection of your Executor may be important to avoid family discord and to ensure that your estate is settled without delay. It is important to choose someone trustworthy who will work well with the attorney, accountant and other professionals who may be called upon to assist the Executor in carrying out his or her duties. If you do not have a Will, the Court will choose the person to perform these tasks, and that person may be different from the person you would have chosen given the opportunity.
4. Save Your Heirs Some Money. An important part of a Will that is not often discussed is the Will’s administrative provisions. A Will can include various provisions that will save an estate considerable delay and expense in the administration process.
For example, if appropriate, the waiver of sureties on a probate bond can save an estate hundreds of dollars a year in surety bond premiums. Permitting your Executor to sell real estate without obtaining Court approval can save attorneys fees and costs if the sale is necessary to settle an estate. Appropriate administrative provisions are very state-specific and are not often included in the form documents readily available. However, an experienced attorney will understand which of these provisions are appropriate to your particular situation and will include them as needed to ensure the administration of your estate proceeds smoothly and without unnecessary expense.
5. Avoid Controversy. Not every family lives in perfect harmony. In some families, parents wish to leave their assets to a particular child or children and omit others with whom they may no longer have a relationship, or who have substance abuse or other issues. In second marriage situations, spouses may want to leave limited assets to their surviving spouse and the bulk of their assets to their children from a prior marriage. Single people with no children may prefer to see their assets benefit a favorite charity after their death, rather than go to distant relatives with whom they are not close. All of these options and many others are possible, but will not happen without a Will. A Will ensures that your instructions regarding your assets are clear and will be carried out following your death, without controversy or interference from family members whom you do not wish to benefit from your estate.
If you want to make sure your young children are cared for and your assets are distributed as you wish, seek out an experienced estate planning attorney, make an appointment, and write a Will today. You will be rewarded with peace of mind, and your heirs will thank you.
Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, visit www.ssbllc.com or call (781) 461-1020. 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.