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Comedian Steven Wright is known for such one-liners as, “I know when I’m going to die, because my birth certificate has an expiration date.” All joking aside, none of us knows exactly when we’re going to die. That fact—when coupled with the tough and often emotional decisions that must be made and the anxiety over the cost of legal services—may explain why so many of us never get around to drafting a will. In fact, about half of all Americans die without one.
Paul O’Connell, an attorney in the Worcester/Westboro law firm Mirick O’Connell and former member of Millbury Savings Bank’s board of trustees, answers the important questions that can help you get started.
Do I need a will?
“With few exceptions, most people are better served by having a will,” advises Paul. This important legal document is the only way to be sure that your property, known as your estate, is distributed to those you want it to go to—and not to those you might choose to exclude. Your estate comprises all your assets including bank accounts, homes, land, automobiles, personal possessions, and investments.
If you have children, a will may also be used to recommend their legal guardian should you and your spouse both die before the kids reach age 18. Parents of minor children also may want to consider a simple family trust in conjunction with their will.
“In the event something happens to both parents while the children are still young, the entire estate would pass to this trust and be managed by your appointed trustee,” explains Paul. “Your trustee then has control of these funds, with broad discretion to make them available for your children’s needs, just as you would do yourselves if you were alive.”
Without a trust, your children’s guardian would have to request disbursements from the probate court for everything from dental expenses to education costs. What’s more, without a trust, your children would gain outright control of your net worth the day they turn 18!
What happens if I don’t have a will?
If no will is in place, Massachusetts’ intestacy laws will apply and will spell out who inherits your money and property and how they’re divided. Take, for example, the case of a married couple with children where the husband dies first. Without a will, many people wrongly assume that his wife automatically inherits his entire estate. “Not true,” says Paul. “In fact, anything owned solely by the husband and not jointly with his wife would be divided among the surviving spouse and the children, making for a potentially difficult situation.”
Things can get even messier if, for example, the deceased husband has surviving children from a previous marriage, or if a self-professed husband and wife aren’t legally married at all. Moreover, if both parents die without naming a guardian, it will fall to a probate judge to decide who is best qualified to raise their children.
What’s an executor and how do I choose one?
An executor is the person responsible for gathering the assets, paying outstanding bills and claims, and distributing the balance to the designated beneficiaries. Typically an individual names his or her spouse or a close relative as executor, because they’re trustworthy and familiar with the individual’s financial affairs.
“It’s a responsibility executors hold for a finite period of time,” says Paul. “In general, creditors of an estate have just 12 months in which to file a claim against the estate, so the vast majority of estates are settled in about a year.”
How much will it cost?
While it hinges on the complexity of the estate, don’t let the potential cost deter you from getting started. “Most experienced estate planning attorneys will meet with you, talk with you about your situation, and then write a letter summarizing a course of action and the estimated cost—all at no charge,” says Paul. But be sure to confirm that with the attorney up front, he advises.
In short, don’t put off drafting your will. It’s the only way that you can ensure your spouse, your children, and other loved ones are protected, and your wishes will be carried out.