Have you heard people saying they just want a simple Will? We get that request all the time! However, simple to one person is not so simple to another. I think to a lot of people a simple will means they want to leave everything to their spouse, and then their kids. And I agree, this is the simplest way to leave your estate, but from an attorney’s perspective, the simplicity stops there.
First off, the Will must have the correct language in it for all the personal representatives (formerly known as the executor) to manage estate assets. For example, if the decedent owned real estate, the Will must contain language that gives the personal representative the right to sell real estate. To keep things “simple,” attorneys need to include boilerplate language to ensure our client’s probate process goes as smoothly as possible. As time goes on, financial institutions have gotten very strict on what someone can or can’t do with an asset that wasn’t theirs to begin with. Therefore, if the Will doesn’t allow for specific trades or access to certain items, it may cause problems getting access to the probate assets.
Think about all the new assets that we must consider. Social media accounts, cryptocurrency, and access to someone’s smartphone. Spoiler alert: even a court document doesn’t always allow you access to your loved one’s phone. You must make sure someone you trust knows how to access your legal documents, phone, computer, and other important items that are kept under logins and passwords.
The second issue with simple Wills is the probate process. Having a Will does not mean that your assets will avoid probate. What the Will does is tell the Probate Court the person who is in charge of the estate, and who the beneficiaries (legal term is devisees) are under the Will. The Will also names who the legal guardians will be of your minor children.
If you do not have a Will, then the Court will go by the intestacy statute to determine who is in charge and who the heirs at law are. When you pass away without a Will, this is called dying intestate. In Massachusetts, the person in charge is called the Personal Representative. This is what was formerly referred to as the executor.
In my opinion, subjecting your assets to the probate process is not simple. Therefore, I feel that an easier way to structure your estate is to utilize a trust. Trusts can hold assets while you are alive so that when you pass away, they aren’t in your sole name at death. They are in the name of the trust. Trusts are their own legal entity.
Lastly, if we simplify things too much, it can lead to ambiguity. I think being specific as possible helps get you to your desired result. It’s like going into a restaurant and saying to your server “I would like dinner please.” They will undoubtedly follow up with many questions. Vegetarian, chicken, fish, or meat? What sides do you want? How do you want it cooked? What do you want to drink with it? If you just say “I want dinner” the waiter may or may not bring you food. Yes, your order to the server was one simple sentence, but what the server brings you might not be what you want. If you order a specific meal with the side and cooking preferences, you might enjoy the meal a lot more.
It’s the same thing with your estate plan. Dying is a complicated matter, so let your attorney make recommendations that will make the transition of your assets a smooth one. Reducing the number of documents or the number of pages in your Will or Trust does not make things easier, it causes extra headaches and heartaches. Find an attorney you trust so that they can do the hard work and you can have peace of mind that your estate is in order.
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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.