Understanding The Last Will and Testament

Estate planning involves more than just providing for the distribution of your assets at death. In addition to your Will, effective planning requires that during your lifetime you designate someone to act on your behalf if you become incapacitated.  You can do this through a Power of Attorney and a Health Care Proxy. These documents allow your agent to make financial and health care decisions for you, without having to seek a guardianship or conservatorship through the probate courts.  The following information is designed to add to your understanding of how a Will will help you and your family. 

A.  Introduction.  A Will allows you to name the beneficiaries of your estate, typically your spouse, if your spouse survives you, and your living children (and the issue of any deceased child) if your spouse does not survive you.  It also allows you to decide to name other beneficiaries (friends, family, charities, etc.), as well.  A Will also names the Executor(s) of your estate and the Guardian(s) of your minor children (in the event your spouse does not survive you).

B.  What happens if you don’t have a Will?  The Commonwealth of Massachusetts has provided you with a “statutory will,” specifying who is entitled to your assets and what percentage they receive.  Determinations are made based solely on degree of relationship and may not be an accurate reflection of your actual wishes.

     1. If you are survived by a spouse and children or other issue of yours, your spouse and the children (or their issue) will share in your estate.

     2. If you are survived by a spouse, but no children or other issue, your spouse receives a share, and the remainder of your estate is divided among your next of kin (i.e., mother, father, sister, brother, etc., based on degree of relationship).

     3. If you are survived by children or other issue, but your spouse does not survive you, your entire estate will pass to your living children (and the issue of any deceased children).

     4. An Administrator will be appointed by the Probate Court to administer your estate.

     5. The Probate Court will require your administrator to post a surety bond, an expense charged to your estate.

     6. If necessary, a guardian will be appointed by the Probate Court for any minor children who benefit from your estate.

C. Tax Considerations.  In 2010 there is no Federal Estate Tax.  The first $1,000,000 of your estate is exempt from Massachusetts estate taxes; in addition, if you are married there is an unlimited Marital Deduction applicable to all assets passing to your spouse.

          This article is offered for informational purposes only and should not be construed as legal advice.  Before executing any documents, you should seek advice a qualified attorney.  Changes in the law and your personal circumstances may significantly alter the strategies recommended.