Where there's a will, there's a heir

By Gina M. Barry, Esq. Associate, Bacon & Wilson, P. C. Special to PRIME Many have heard the expression, "where's there's a will, there's a way," but among estate planning specialists, we have changed the old adage some, that is, to "where's there's a Will, there's an heir." This saying reflects the inherent complexities involved in establishing a Will and highlights the importance of having a well-crafted plan to ensure that your heirs receive your assets as intended. Will basics A Will is document in which you direct to whom your property will pass when you die. In Massachusetts, to execute a valid will, you must be at least eighteen (18) years old and of sound mind. Your Will must be in writing, signed by you, and witnessed by at least two people who must also sign the Will. A well-drafted Will also contains an affidavit, known as a self-proving affidavit, establishing that you followed all of the formalities required when executing a Will, which eliminates the need to have a witness go to the Probate Court to prove your Will after your passing. Once you have established a Will, you can change it at any time so long as you are competent. What a Will does A Will directs the disposition of your probate estate, which consists of any property held in your name alone that does not have a beneficiary designated at the time you pass away. Many people attempt to avoid probate by holding all of their assets jointly with the person(s) that they want to have them if they pass away or by naming those persons as beneficiaries on any assets where beneficiary designations are allowed. As such, a common misconception is that you do not need a Will if everything you own is either held jointly or has a beneficiary designated. There must be a surviving joint owner or beneficiary for this plan to work. If the joint owner or named beneficiary predeceases you, that asset may pass to your estate to be distributed in accordance with your Will. Wills & Probate Avoiding probate does not depend on whether you have a valid Will, rather it depends on whether you leave behind probate assets. If you do leave behind probate assets, the only way for you to have a voice in the process is by having a valid Will. Upon your passing, if you leave probate assets and a Will, the Will will be probated and your instructions will be followed as set forth in your Will. If you do not have a Will, your estate will be administered in accordance with rules established by the state legislature. Without a Will ... When you die without a Will, the distribution of your property is determined by identifying which blood relatives have survived you, if any. The legislature has enacted statutes identifying your "heirs at law," who are the blood relatives who will take your estate, and also establishing how much of your estate a given blood relative will take, if any. For example, if you are survived by a spouse and children, your spouse will take half of the personal property and half of the real property, and your children will take the remaining halves. If you are survived by only children and no spouse, your children will take all of your estate in equal shares. Ultimately, if you leave no blood relatives, your property will pass to the Commonwealth. Having a Will removes this possibility and allows you to leave your estate to friends or a favorite charity who would never be entitled to your estate in the absence of a Will. A Will lets you give instructions A Will is also necessary so that you can name people to fill important roles with respect to your estate. You will be able to designate an Executor, who will be responsible for gathering your probate assets, paying your debts, and making distributions of the remaining assets to your heirs as set forth in the Will. Further, if you have minor children, you be able to designate whom you want to take custody of your minor children as their guardian after you pass away. By not making a Will, you forfeit your power and ability to make these designations and to direct the disposition of your property. Get the proper advice Due to the legalities involved in making a Will and the inherit pitfalls involved in the process, it is best to have an estate planning specialist assist you when drafting this very important legal document. By doing so, you will ensure that your estate will be carried out in accordance with your wishes by those you have named to do so. A Will facilitates the probate process and ensures that your heirs receive the assets you intended them to receive. When a decedent passes away having a Will that is properly drafted and executed, the adage changes again to "where's there's a well-drafted Will, there's a happy heir." Gina M. Barry is an Associate with the law firm of Bacon & Wilson, P.C., Attorneys at Law. She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association. She concentrates her practice in the areas of Estate and Asset Protection Planning, Probate Administration and Litigation, Guardianships, Conservatorships and Residential Real Estate. Gina may be reached at (413) 781-0560 or gbarry@bacon-wilson.com.