Note: If you follow my blog you may remember that I first posted this at the beginning of 2014. Because the information has not changed and the message is still as important today as it was then I am posting this again. If you read it last year and don’t remember what it said, it is worth reading a second time. If you have never read it, the information is relevant to everyone.
No one likes to think about what would happen in the event of their untimely death; therefore many people delay their estate planning. The beginning of a new year is a good time to address the important issues in our lives which should include your estate plan.
I stress to my estate-planning clients — and ensure that they understand it — that they do not draft an estate plan for themselves but for the family members they leave behind.
For those who die without a will, which we call intestate, the Commonwealth of Massachusetts controls the ultimate distribution of 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 this concept is to provide a couple of examples.
Example 1. If you own your home with your spouse and it is titled in both your names as “tenants by the entirety,” when one of you dies the ownership of the house transfers automatically to the surviving spouse. There is no need to do anything else to transfer the ownership of the house because the 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.)
Example 2. If you have a joint savings account with the right of survivorship, when one person dies, the other person whose name is on the savings account automatically becomes the owner of the savings account. In both Examples 1 & 2, the asset would pass outside of probate and, even if you had a will, the will would not be used to determine who gets the asset.
So what is the problem for someone who does not have a will? If an asset does not pass by operation of law, then your estate must be probated to determine who gets the legal ownership of your property. If you executed a will then the terms of your will controls who will get your probate assets. If you did not execute a will, the Commonwealth decides who gets your probate assets.
Another significant benefit that a will provides for people with children under 18 is to clearly define who will serve as the legal guardian of your minor children when you are no longer alive. If you do not have a will, then the Probate Court will decide who should be the guardian of your children.
The bottom line is that one of the most important things you can do for those you care about is to meet with an experienced estate planning attorney and discuss your situation and the best way to take care of those you love. An estate plan is not for you, it is for them.
I have been practicing law for more than 25 years and estate planning is one of my major areas of concentration. If you would like to set up an appointment for an initial meeting to discuss your estate planning, please call me at either 781-934-8200, 781-585-2900 or e-mail me at George@BoergerLaw.com.