If you have not written a will of your own, the Commonwealth of Massachusetts has written one for you. Either your will or if you did not write one (and execute it properly) the will the Commonwealth has prepared for you controls what happens to your probate assets. A probate asset is any asset that does not pass by operation of law. What does that mean? The easiest way to explain is to give a couple of examples.
If you own your home with your spouse and it is titled in both your names as “tenants in common” when one of you dies, the house is automatically owned by the other spouse. There is no need to do anything else to transfer the ownership of the house because title to the house passes by operation of law. (It is extremely important to understand how real property is titled to know what will happen when you die.) Another example is a joint savings account with a right of survivorship that you have with someone else. When one person dies, the survivor automatically becomes the owner of the savings account.
If an asset does not pass by operation of law, then it must be probated so that the new person has the legal ownership of the property. If you don’t have your own will the following will happen:
- If you have minor children the Probate Court will determine who is in the best position to raise them. You do not control who raises your children.
- Your probate property will go to those people who the Commonwealth deems appropriate. These people are called your heirs at law. They will inherit your property even if you told everyone you did not want them to receive anything. If you want to disinherit an heir at law you must do it with a validly executed will.
- If you have minor children, any property that they inherit will become subject to their total control at age 18. Do you really want your son or daughter to have control of what may be a significant sum of money at age 18? If not, then proper estate planning by putting a will with a trust in place is essential.
- If you own a business your death without a well thought out estate plan could also mean the death of your business. Even if the business runs without you, the Commonwealth’s determination of who gets your assets which could include your business may create a great deal of financial pressure (between siblings who work in the business and those who do not) causing the business to fail or be sold. Everyone who has a controlling interest in a business they want to see continue after their death needs a well thought out estate plan.
The bottom line is that the only way to control who takes care of your children and who gets your property is to have a properly prepared and executed estate plan in place. This estate plan would always include a will and may include a trust. If you don’t have will of your own, what are you waiting for?