Many people do not understand exactly what a Will does and what it’s purpose is. A Will does not avoid the probate process. A Will is a “catch all” for a decedent’s probate estate. A probate estate is any asset that is in the decedent’s sole name at death. Assets that are held jointly with another person’s name (e.g. a joint bank account or real estate) or assets that have named beneficiaries (e.g. life insurance or retirement assets) do not pass through the Will, and are not probate assets.
A Will is always recommended because no one can be absolutely certain what their estate will entail at their death. Many people believe that they have no probate assets, but there are many circumstances, sometimes out of their control, that change the best laid plans. For example, an unexpected inheritance (no matter how small) or a forgotten asset, such as a retirement account from an old job, can cause you to have a probate estate unexpectedly.
In addition, the Will is the only document where the decedent can name a guardian for his or her minor children. Parents of young children are highly encouraged to have a Will so that there is no question or contention of who will be the guardian of their minor children, should something happen to the parents. Without a Will, the court will make the final determination of who is to be guardian, and it may not be who the parents would have chosen. It is always recommend that spouses name each other in their Wills as guardians, and also a back up guardian. Many couples think that their spouse will automatically be named the guardian should something happen to one of them. However, there have been cases where a non parent proves that the biological parent is not in the best interest of the child, and the non parent is named guardian. This is one reason why it is so important for young parents to have a Will naming who they wish to be guardians of their minor children.
Lastly, the Will appoints a fiduciary to be responsible for distributing the decedent’s assets to the named heirs in the Will. If the decedent does not have a Will, the court will appoint someone (again, this may be someone who the decedent would not have chosen) and the assets will pass according to the intestacy statute. The intestacy statutes outlines who inherits from a decedent when there is no Will.
To answer the age old question of whether you need a Will, ask yourself the following three questions:
By establishing an estate plan that includes a Will, you will be given piece of mind that your wishes will be followed and that your loved ones will be taken care of.
Copyright © 2023 Ladimer Law Office PC
209 West Central Street
Natick, MA 01760
Ladimer Law specializes in estate planning. We protect our clients, their heirs, and their assets by listening closely, knowing the law, and executing estate plans that fit and evolve.