The Law Offices of Donna J. Hines & Associates, P.C. is a firm specializing in simple estate planning, trust and estates.
Definition of a Will
A Will is a written document which directs the disposition of assets for which probate is required, nominate guardians for minor children and to name and executor to administer the estate. The will becomes effective upon the testator's death. In Massachusetts, as a general rule, there are five requirements that must be met in order to have a valid will. They are as follows:1. the testator (person whose will it is) must be at least 18 years of old
2. the testator must be competent to write a will
3. the will must be written
4. the will must be witnessed by two competent individuals
5. the will must be signed following specific technical formalitiesWhat happens when you don't have a will
If you do not have a will your estate goes by intestacy. What this means is that your property is distributed to your heirs at law according to the Massachusetts statutory formula. The probate court mandates who gets paid first. The order is as follows: the expenses of administration, funeral expenses, last illness debts, taxes an lastly, any family allowances. After all of those expenses are paid the remaining money and property left in the estate is divided accordingly:
1. If the deceased leaves issue, then the surviving spouse gets half of the personal property and half of the real estate. The remainder goes to the issue.
2. If the deceased leaves issue but no spouse then all property of the estate goes to the issue.
3. If the deceased leaves no issue but there are kindered, the surviving spouse gets the first $200,000.00 and one half of the remaining personal property and remaining estate.
4. If the deceased has no issue or kindered then the surviving spouse gets all of the estate.
5. If the deceased leaves no issue, kindered nor spouse then the estate goes to the state.What can't you give away in a will?
There are several items that pass rights by the will and can not be disposed of by the will. Some typical examples of such are jointly held bank accounts, real estate held by rights of survivorship, and life insurance proceeds.
Things that can be done by a will
1. If you want to exclude one of your children you can so do by specifically mentioning this in your will. If you did not specifically exclude a child that you meant to then that child is entitled to a share of the estate.
2. The same goes for spouses as it does for children. You must specifically exclude your spouse in order to prevent them from getting shares of your estate otherwise your spouse gets a share of the estate.What can make a will invalid?
A marriage can revoke a will, unless you specifically state so in your will that marriage will not revoke the will. A divorce or an annulment can also revoke a will, but only as to the former spouse.
What is a living will?A living will allows a competent adult to decide the course of their medical treatment regarding life-sustaining treatment in the event of a terminal diagnosis. A living will is a non-binding document which states what kinds of medical treatment you would agree to should you not be able to communicate this yourself, (for example if you were unconscious). Although this is non-binding it does assist health care providers and relatives with decisions regarding your medical treatment. A living will must be specific by reflecting exactly which treatments you would or would not agree to.
What does a health care proxy do?A health care proxy appoints a person of your choice to make decisions regarding medical treatments. As opposed to a living will, where you specifically outline which medical treatments you would agree to, a health care proxy allows you to choose someone to make these decisions for you. A health care proxy will only be used should you not be able to communicate what health care decisions to make. The health care proxy is more flexible than a living will because it allows for unanticipated circumstances.
Why would I need to appoint a guardian or a conservator?Both guardians and conservator's are individuals either appointed by the court or by your will that will be responsible for the person needing care should both you and your spouse pass away. Any person can be appointed a guardian or conservator provided they are eligible and fit for the job. The major difference between a guardian and a conservator is that a guardian has custody of the individual. In the event there is not a will with a provision for a guardian, the probate court will the appoint one if:
1. the individual is a minor
2. the individual is mentally ill
3. the individual is mentally retarded
4. the individual is a spendthrift (due to influences such as drugs or drinking which results in that person lessen the estate)
5. the individual suffers from physical incapacity or mental weaknessThe duties of a conservator or guardian are to pay the individual's debts, represent them in lawsuits, control and manage their money and property, and support the individual and their family.
What is a Family TrustA family trust provides for children upon the death of you and your spouse. Upon the death of the survivor of both spouses, the residuary estate of the survivor will pass according to the terms of his or her Will to the Family Trust and the trust property will then be held for the benefit of the children (and possibility grandchildren and more remote descendents).
Until the youngest child reaches a certain age, the trustees of the trust will administer the family trust as a common fund for the benefit of the children. The trustees will have broad discretion to make distributions of income and principal to or for the benefit of the children. When the youngest child reaches an age determined by you and your spouse the trustees shall divide it into shares of value, one share for the benefit of each then living child who has attained this age. If such child has not attained this age then trustees shall continue to hold and administer, in trust, the share(s) of the trust property allowed for the sold and exclusive benefit of each child until they reach the age.