Why Everyone Should Have a Will  

There is a common misconception that only those individuals with sizable assets need a will. This is simply untrue. Anyone who is interested in directing the assets they have amassed over their lifetime should have a will.

Let’s start by explaining what will happen to your estate if you die without a will. If you fail to plan your estate and die without a will, the laws of the Commonwealth of Massachusetts will create an estate plan for you. The entire system of “intestate” succession or “descent by distribution” is set forth by statute and is too complex for a detailed discussion here. But some surprising and frequently undesirable results can occur. For instance, the law prescribes both the persons to whom your property will pass and the division of your estate among those persons. Also, the distributions provided by law are inflexible and may not satisfy your desires as to the distribution of your estate. In addition, if your children are minors at the time of your death, a cumbersome and costly legal guardianship will be necessary to determine distributions.

If you die without a will and your spouse and children survive you, not all of your probate assets will pass to your surviving spouse. One half of your probate assets will pass to your surviving spouse, while the remaining half gets passed to your children. For the most part, a probate asset is any asset that is in your name alone at the time of your death.

The problems of dying without a will are aggravated if a married couple owns a family business with 50 percent owned by each spouse as separate property. If one of the spouses dies without a will, the ownership interest of the deceased spouse will pass to the surviving spouse and minor children, and a legal guardian will be required to manage the portion of the business interest that passes to the minor children. The surviving spouse will then have the guardian of the minor children as a “partner” in the family business. In accordance with the requirements of a guardianship, the surviving spouse may have to post a bond and make a detailed, periodic accounting of all business transactions to a court.

If you die without a will and are survived by your spouse alone, leaving no children, not all of your estate will pass to your surviving spouse. Part of your estate will actually pass to your parents. Again, such a division might not accurately reflect your wishes.

If you die and are survived by your children only, leaving no surviving spouse, your entire estate will pass to your children. If your children are minors, a guardianship will be necessary to manage the property.

As you can see, each of the above scenarios may not accurately reflect your wishes with respect to the distribution of your property. By drafting a will, you take control of exactly how your estate will be managed and distributed.

In addition, you can name who will raise your children by appointing a guardian in your will. Keep in mind that this appointment is crucial if both parents are not living because if one parent is still living, he or she ordinarily will raise and support the children. If you do not have a will, the court will make the selection of a guardian. We recommend that you assume the responsibility of this important decision, rather than leaving it to a judge unfamiliar with your family situation.

Clients frequently tell us that they have chosen one of their parents as the guardian in the event of both clients’ deaths. But in many situations we believe that such a decision is unwise. For example, assume that the youngest child of the client is three years old, and the client’s parent is 68. When the child is 15, the grandparent will be 80. Under these circumstances, another choice may be better for your child. You should look first to your contemporaries, such as brothers, sisters, or cousins. If such family contemporaries are not appropriate, then consider friends with children in the same age range as your children. In any case, you should consult with the proposed guardian to ensure that the person is agreeable to assuming the significant responsibility.

With the proper planning and drafting of a will, you should be able to take comfort in knowing that your wishes with respect to the distribution of your property and the guardianship of your children will survive you.

Parker Scheer LLP lawyers handle personal injury cases in Massachusetts towns including Acton, Amesbury, Amherst, Andover, Arlington, Ashburnham, Ashfield, Ashland, Athol, Attleborough, Barnstable, Barre, Bedford, Belmont, Berkley, Berlin, Bolton, Boston, Boxborough, Boxford, Boylston, Bradford, Braintree, Burlington, Buzzards Bay, Cambridge, Carlisle, Charlemont, Charlestown, Charlton, Chelmsford, Chelsea, Clinton, Concord, Danvers, Dedham, Deerfield, Dudley, Duxbury, East Longmeadow, Essex, Fall River, Fitchburg, Foxboro, Framingham, Franklin, Freetown, Gardner, Gill, Gloucester, Granby, Groveland, Hadley, Hamilton, Hanover, Haverhill, Holbrook, Holliston, Holyoke, Hopkinton, Hubbardston, Hudson, Ipswich, Kingston, Lakeville, Lancaster, Lawrence, Leominster, Lexington Lincoln, Lowell, Ludlow, Lynn, Lynnfield, Malden, Marblehead, Marlborough, Marshfield, Maynard, Melrose, Methuen, Methuen, Middleborough, Middlefield, Milford, Milton, Monterey, Nantucket, Natick, Needham, New Bedford, Newbury, Newburyport, Newton, North Attleborough, North Brookfield, Northampton, Northborough, Paxton, Peabody, Pepperell, Pittsfield, Plymouth Provincetown, Quincy, Reading, Richmond, Rockport, Rowe, Rowley, Salem, Saugus, Sherborn, Southbridge, Spencer, Sterling, Stoughton, Stow, Sturbridge, Sudbury, Templeton, Topsfield, Townsend, Truro, Upton, Wakefield, Waltham, Watertown, Wayland, Wellesley, West Boylston, West Newbury Westborough, Westford, Weston, Westport, Williamstown, Wilmington, Winchendon, Winchester, Woburn, Worcester, Yarmouth. Parker Scheer also provides referral services for personal injury lawyers in states other than Massachusetts.

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