What is a Will, and do I need one?
A Will, also called a Last Will and Testament, contains basic instructions intended to take effect at death. A Will has many purposes, including:
- Providing instructions governing how personal items (such as cars, furniture, clothing, and jewelry) will be distributed after your death;
- Appointing an executor who will oversee the settlement of your estate after your death;
- Naming a guardian for minor children;
- Providing direction that all debts be paid; and
- Providing instructions on how all other assets (after payment of liabilities and distribution of personal items) should be distributed.
A Will only controls the distribution of probate assets. Examples of probate assets are a bank account, stock certificate, or home in the name of the deceased person alone. The terms of a Will do not control the distribution of non-probate assets, such as life insurance policies, property held as joint tenants with right of survivorship, retirement funds with a living, designated beneficiary, or Trust property. These assets will be distributed to the person entitled to the asset by operation of law or contract, outside of the probate process.
Dying without a will is called dying intestate. When a person dies intestate in Massachusetts, probate assets are distributed according to the laws of the Commonwealth. Dying intestate can cause unintended results. For example, the probate assets of a married person dying intestate who is survived by a spouse and children will be distributed in two shares: 50% to the surviving spouse and 50% to the children. If a married person dies intestate leaving no children but leaving siblings, the surviving spouse gets the first $200,000.00 plus one-half of the remaining assets. For an estate of $800,000.00, this will result in the siblings receiving $300,000.00 by operation of law to the exclusion of the surviving spouse. (See Massachusetts General Laws, Chapter 190, Section 1.)
We have all heard the stories. "When Mom died, my uncle took the coin collection." "When Dad died, I fought with my brothers over the tools, and I haven't spoken to my brother since then.” "When my sister died, her second husband took all of my mother's family heirloom jewelry and sold it on eBay.” "When Mom died, my brother's wife told my brother what she wanted, and he took my mother's china before we could get to the house.” Any estate planning attorney hears such stories too often. A well-drafted Will can avoid family divisions over personal items of little monetary value.
A Will should specify who is entitled to receive tangible personal items such as clothing, cars, jewelry, and household items. Some Wills recite that specific items should be distributed to a particular individual. Other Wills identify a group of people such as "my surviving children.” Wills can also refer to a separate document to help the executor decide the recipient of certain items.
The key to avoiding family squabbles is to include a method of settling disputes. If the executor is not entitled to share in the tangible personal property, we may give the executor the authority to settle disputes. If the executor is entitled to a share of personal items, we may direct that any disputed item is to be sold, or determine the distribution of the disputed item by a random method such as drawing straws. We can also direct that disputed items be sold and the proceeds given to charity. These provisions often work to settle disputes easily. Though estrangements may still happen, it is exceedingly important to give the named executor and beneficiaries clear directions on how to settle disputes involving tangible personal property.
To avoid unintended results and family squabbles over personal items and to provide clear directions to surviving family members, most adults should have a Will.