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

PRIME July 2012 Gina M. Barry Bacon Wilson, P.C. Special to PRIME We've all heard the expression, "Where there's a will, there's a way," but among estate planning specialists, the old adage becomes "Where there's a will, there's an heir." We have all heard the stories about heirs coming out of the woodwork when money is to be had. This saying likely arose from that very common occurrence. This saying also reflects the inherent complexities involved in establishing a will and highlights the importance of having a well drafted will to ensure that the heirs you wish to receive your estate actually do receive all that you intended. 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 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 that establishes that you followed all of the formalities required when executing a will. This affidavit eliminates the need for a witness to attend 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 remain competent. Many people believe that if they have a will, their estate will not require probating, but this belief is incorrect. In order for your will to speak, it must be probated as a will, which directs the disposition of your probate estate. Your probate estate consists of all property held in your name alone that does not have a living designated beneficiary. Whether your estate must be probated depends upon whether you leave behind probate assets. Upon your passing, if you leave probate assets and a will, it will be probated and your instructions will be followed. If you do not leave a will, your estate will be administered in accordance with rules established by the state legislature. Many people attempt to avoid probate by holding all of their assets jointly with the person or people that the assets are intended for if they pass away; also naming those people as beneficiaries on any assets where beneficiary designations are allowed. When doing so, many people believe that they do not need a will. This is another common misconception. Quite simply, if the joint owner or named beneficiary predeceases you, that asset will pass to your probate estate to be distributed in accordance with your will, assuming you have one. When you die without a will, the distribution of your property is determined by identifying whether you have a spouse and by which blood relatives have survived you, if any. The legislature has enacted statutes identifying your "heirs at law," who are the relatives who will take your estate, and also establishing how much of your estate a given relative will take. If you leave no known blood relatives, your property will pass to the Commonwealth. Having a will allows you to direct who will receive an inheritance from you and in what amount, and enables you to leave some or all of your estate to friends or a favorite charity, if so desired. A will is also necessary so that you can name people to fill important roles. You will designate a personal representative, responsible for gathering your probate assets, paying your debts and making distributions of the remaining assets to your beneficiaries as set forth in your will. If you have minor children, you will designate a guardian to look after them should you pass away. If you leave assets to a minor child, you might also create a trust within your will to hold the assets and manage them until the minor is old enough to receive them outright. By not making a will, you forfeit your power and ability to make these designations and to direct the distribution of your property. Due to the inherit pitfalls involved in establishing a will, it is best to have an estate planning specialist assist you. By doing so, you will ensure that your estate will be carried out as you wish by those you have named to do so. When you pass away having a will that is properly drafted and executed, the adage changes again to "Where there's a well-drafted will, there's a happy heir." Gina M. Barry is a partner 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. Barry may be reached at 413-781-0560 or gbarry@baconwilson.com.