Why Do I Need a Will?

I received a message from a reader, who thought it might be a good idea to address the importance of having a Will, or even a basic estate plan, especially when there are children involved. Below I have attempted to address that particular issue, as well as other unintended possibilities which may result in the absence of even a basic Estate Plan.

 

Thank you to my reader. Your input is very much appreciated.

 

 

Why do I need a will?

 

Please remember that this answer is provided in the spirit of public education, not as legal advice. If you require legal advice for a particular situation, you should consult an attorney.

 

1. You have minor children.

 You should write a will in order to appoint guardians for your minor children, and trustees to manage their property. If you do not leave a will, the court may appoint a guardian whom you would not have chosen.

You also need to write a will in order to prevent minor children from inheriting real estate outright. Although minors have the legal capacity to own property, they do not have legal capacity to manage it. If your children inherit a share of your house, your spouse would not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders is expensive and time consuming. Although children generally do not inherit community property in the absence of a will, they do inherit a share of your separate property. In many families, the primary residence is partly separate property because the down payment was made with a gift from parents or with money earned by the spouses before marriage. (See the FAQ on community property.)

 

2. You have no children.

 Do you know what would happen to your property if you died right now without a will? You might be surprised to find out that your spouse might not inherit everything. If you and your spouse have no children, your parents or siblings might inherit part of your home and become co-owners with your spouse. Your spouse would not be able to sell the house or other property without their permission, and vice versa. If you want to remember your parents or siblings in your will, it is best to leave them specific pieces of property that they will not have to share with your spouse. A will can accomplish this.

 3. You have a large family.

 All of your heirs will become co-owners of every asset you own, and will have to manage all the property together. They may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organized. With a will, you could leave specific assets to specific heirs, or put one heir in charge as trustee for the others. Either way, writing a will would save your heirs significant hassle and expense. It could also prevent major feuding.

4. You own real estate.

 In the absence of a will, real estate is likely to be inherited by minors or numerous co-owners, and either result will be costly. A little estate planning now can save your heirs significant expense and trouble later.

 5. None of the above.

 Even if you do not think you need a will, you should still see an estate planner to draw up powers of attorney for health care and financial matters. If you become incapacitated by illness or accident, a power of attorney will be critical to allow a friend or loved one to pay your bills and make health care decisions for you. These simple documents not only save money later, but they give you the security of knowing things will be taken care of in your absence.

 

Who will get my property if I die without a will?

 

Please remember that this answer is provided in the spirit of public education, not as legal advice. If you require legal advice for a particular situation, you should consult an attorney.

 What happens if you die without a Will? How will your property in Massachusetts pass to your loved ones? It is often said that if you don't have an estate plan, the State has one for you.  Here it is:  

 1) If a person dies with a spouse, and with kindred (relatives) surviving them, (but no children), the spouse is entitled to the first $200,000 and half of the remaining real and personal property. If the personal property is not sufficient to provide the surviving spouse with $200,000, real estate owned by the deceased can be sold or mortgaged to provide for the surviving spouse. 

If the deceased leaves issue (children, and children, grandchildren, etc. of deceased children), the surviving spouse shall take one half of all real and personal property.

If the deceased leaves no issue or kindred, the surviving spouse inherits all of the real and personal property. 

2) After the surviving spouse's share is distributed, or if there is no surviving spouse, the remaining property is distributed in equal shares to the decedent's issue, by right of representation. If all issue are of the same degree of kindred (i.e., all are grandchildren, or all are great-grandchildren) they shall share equally. 

 If the decedent leaves no issue, than to his or her mother and father, or the survivor of them.

 If the decedent leaves no issue and no parents, than the property goes to his or her brothers and sisters, of the issue of any deceased brothers and sisters.

 If the decedent dies with no issue, parents or siblings then the property is distributed to then to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.

 3) If someone dies with no spouse or kindred, their property shall escheat to the Commonwealth.

 Those without a Will may think that their spouse will inherit all of their property upon their death, but as you can see, it is possible that a spouse would only inherit half of the property held in the decedent's name alone, while also providing for distributions to rather distant relatives.  Is this how you would want your Will to read?

 If you have, or anyone you know has, any questions concerning any of the issues raised in this article, please feel free to contact my office.