What is a "Will" and why is it important to have one.

March 09, 2015 Adam Schmaelzle Legal Blog 0 comments

By Adam D. Schmaelzle, Esq.
 
So you’ve been working hard for the past few years and managed to save up some money.  Maybe you’ve picked up a few valuable items along the way. A house, your grandmother’s wedding ring, an investment of some sort or maybe a shiny car.  And it’s no secret that tomorrow is promised to no one (sorry for being dramatic). But the point is this; you’ve earned it, you should be able to decide what happens to it if something ever happened to you, and unless you want the state making those decisions for you, it’s time you did some estate planning.
 
What is a will? A will is a legal document, often called a “Last Will and Testament”, which essentially allows you to tell the world what you want to do with your things after you passed away.  A will generally contains some legal jargon so I will do my best to explain what some of it means.  When a will is created, you will be known as the “Testator”.  The Testator will appoint a “Personal Representative” (formerly known as the Executor/Executrix).  The Personal Representative will be responsible for (1) administering the estate (2) probating the estate, and (3) distributing the assets to the beneficiaries.  This can be a lengthy process, taking anywhere from a few months to several years to complete.  Luckily, Massachusetts recognizes the Uniform Probate Code, which makes the whole process a lot easier than some other states.  Administering the estate means that the Personal Representative must manage the Testator’s assets, pay off the testator’s debt, and file and pay off the decedent’s final tax returns.  The personal representative must also make any distributions of bequests. Finally, probating the estate is the legal process where the will becomes legally recognized by the court. Once the court recognizes the will, the Personal Representative can do their job.
 
With that out of the way, what should you put in your will?  Every will is going to be different.  You can request where you want to be buried, or if you would rather be cremated instead.  If you would rather be cremated, you can request what you want to do with your ashes. You can decide what things of yours you want to give, and whom you want to give it to. These are called bequests, and it looks like this:

     

  1. To my dearest friend Kanye West, I bequeath to you the following:
    1. My Taylor Swift record collection.

 
Some other things to consider:

     

  • If you have children, you can pick a guardian for them if their other parent is unavailable or unable to raise them.
  • There is a legal document known as a “health care proxy” which can appoint another person to legally make medical decisions on your behalf if you ever became unable to make those decisions for yourself.
  • YOUR CREDITORS ALWAYS GET PAID FIRST!!!!
  • Appointing a “power of attorney” can make it easier to access your bank accounts, credit accounts or dealing with any property matters.
  • You can make a new will every day of the year.  Each new will supersedes the one made previously.
  • It would be wise to give a copy of your will to whoever you named as your personal representative, or at the very least, let them know where they can find your will in the event of your passing.  Remember, if you had a certain request pertaining to your burial wishes, but your will isn’t discovered until after the fact…your wish may not come true.

 
Lastly, for a will to hold up in court, it must be valid. In order for your will to be valid, it must be (1) In writing, (2) signed by the will-maker, (3) witnessed and signed by at least two witnesses; and (4) the will maker must be of sound mind, with legal capacity, signing it willingly and knowingly as their free act and deed.
 
If you die without a valid will your estate will be considered “intestate”.  This means that the Massachusetts’s Uniform Probate Code will kick in and your assets will be divided according to M.G.L Ch. 190B.  As such, I would suggest to anyone, young or old to create a will and a health care proxy.
 
If you have any questions, or feel as though a mistake was made, please feel free to contact Attorney Adam D. Schmaelzle at 774-314-9124
 
Links:
 
1. M.G.L Ch. 190B

 

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