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Does everyone need a Will? 

The short answer is that every adult with assets should have a Will.   There are many important reasons and several are outlined here in answers to commonly asked questions.

Q. What is a Will?
A.  A Will is a document written with the formalities of law that allows you to personalize the distribution of your property. Without a Will your property will be distributed in accordance with state law and perhaps, contrary to your wishes.
Q. If I am married and have children, won’t all of my assets go directly to my spouse without the need to have a Will?
A.  When a married person dies without a Will leaving a surviving spouse and children, the assets of the deceased spouse’s estate will be divided between the surviving spouse and the children. The survivor will receive half of the estate and the children will divide the remaining half. Most married people would prefer that everything go to the surviving spouse and then everything to the children only after both mother and father have passed away. This result is easily obtained in a properly written Will.  
Q. If both my spouse and I were killed in an accident, won’t everything we have go to our children even if we don’t have a Will?
A.  Yes, certainly everything would go to the children in equal shares, but if they are under the age of 18, the Court will appoint a guardian to care for the children and manage the funds. As each child reaches the age of 18, they will be entitled to their share of the estate free and clear.   Since there is no Will, the court will appoint an individual to administer the estate. With a Will, the parents could name the best suited guardian for their children. They could establish a trust to hold and manage the funds for the benefit of the children until they are mature enough to manage the funds themselves. They could also appoint an executor of their own choosing to administer their estate.
Q. What if I am single and do not have to worry about providing for a spouse or children, won’t all my assets go to my closest relatives?
A. The assets certainly would go to the closest relatives as defined by law. Those relatives may, however, not be the closest relatives to you personally or for other reasons not the appropriate beneficiaries of your estate. In Massachusetts, if you die without a Will and have no spouse or children, your assets first go to your mother and father if they survive you, or your brothers and sisters equally if your parents don’t survive you. If you have no surviving brothers and sisters your assets will go to your nieces and nephews equally. There are many reasons why this may not be appropriate and may be contrary to a person’s wishes. 
Q. My wife and I own everything together, do we still need a Will?
A.  It is true that jointly owned assets will go to the surviving spouse automatically even if there is no Will. Of course this type of ownership does not address the problems that would occur if a husband and wife died in a common accident. There are other circumstances where there may be claims in the name of the deceased spouse alone that would not go to the survivor. These would include claims pending for personal injury or for inheritance. Any assets received as a result of those claims would be divided between  the surviving spouse and the children. 
Q. If I do have a Will, will my estate avoid the probate process?
A.  Any property of any kind that is owned in the name of the deceased alone at the time of his or her death is probate property. This means that the transfer of ownership from the deceased to his or her heirs must be done in accordance with the probate process. Whether or not an individual has a Will at the time of death does not control whether there is a requirement for probate. However, a Will allows certain powers to be provided to the executor which can reduce the cost and the time required to complete the probate process.
All of the attorneys at Russell, McTernan, McTernan & Fruci, LLP  have extensive experience drafting Wills and Trusts for both simple and complex estate plans. We are always available to answer your questions and schedule an appointment to discuss any of these matters.



Content on this web site is for informational purposes only and does not constitute legal advice.