Wills & Estates

Do I Need a Will?
      A Will is a written document that outlines how your assets will be distributed upon your death. A Will also enables you to choose a legal guardian for minor children and choose a personal representative to manage your estate throughout the probate process. If you want to control who inherits your assets, who manages your estate and who will care for your minor children if there is no surviving parent then you need a Will.
 
What does a personal representative do?
      Being a personal representative is a huge responsibility and a time consuming commitment. A personal representative will have control over your entire estate so it is important to choose someone competent and whom you can trust. It is a good idea to select an alternative personal representative incase the one you have chosen cannot perform.
 
Some of the duties of a personal representative include:

• Obtain the Will.
• Collect and protect assets that will have to go through the probate process.
• Give legal notice to potential creditors.
• Give notice to all beneficiaries named in the Will.
• Investigate the validity of all claims against the estate.
• Receive payments due the estate.
• Appraise the estates assets.
• Distribute assets in accordance with the instructions provided in the Will.
• Prepare and file income and estate tax returns.
• File all required documents with the probate court.

What will happen if I die without a Will?
      When you die without a Will in Massachusetts, you have died "intestate" which means your assets will be distributed according to the laws of intestacy. If you die with a Will, you have died “testate”. If you die intestate the court will appoint an administrator. An administrator has the same duties as a personal representative.
 
How will my estate be distributed if I die intestate?
Below is an outline of how your estate will be distributed if you die without a Will:

• Your surviving spouse will inherit the entire estate if you die without any surviving parents or descendants OR your descendants are also your surviving spouses only descendants. Descendants are your children, grand-children, great grand-children etc.. 
• Your surviving spouses inheritance is more limited if when you die your parents are still alive, your surviving spouse has descendants who are not also yours or you have descendants that are not your surviving spouses.  
• If there is no surviving spouse the estate passes to the descendants first which as mentioned include children, grand-children, great grand-children etc.. If there are no descendants, the estate goes to your parents, if your parents have died, the estate goes to your siblings.

 
What is probate?
      Probate is a legal process that takes place in the county where the deceased person resided. Probate occurs whether there is a Will or not. The personal representative or administrator collects the assets of the estate, pay debts and taxes, and transfers ownership of these assets from the deceased to people named in the Will or people who will inherit in accordance with the law. In Massachusetts, there are two different ways to probate an estate, informally or formally. Informal probate is not allowed under certain circumstances and formal probate may be required for certain reasons.
 
What is a probate asset? What is a non-probate asset?
      Probate assets are assets that are owned solely by the decedent. These assets must be probated in order to transfer ownership to a different person. A non-probate asset is an asset whose disposition is not controlled by a Will or the laws of intestacy. Once the decedent dies, these assets pass to a new owner. An insurance policy with an identified beneficiary, jointly held property where there is a right of survivorship or a bank or retirement account that names a beneficiary are examples of non-probate assets.
 
Can my spouse and I have the same Will?
      Unlike other states that allow spouses to create a single Will leaving everything to the other person, Massachusetts requires each spouse to have their own separate Will. 
 
How do I protect my minor children?
      In your Will you can name a legal guardian to take care of your minor children incase something happens to both parents. They have the legal authority and responsibility to take care of a child, just like a parent. If you die without a Will or fail to choose a legal guardian, the court will decide who takes care of your minor children.