In Massachusetts, a will is a critical part of estate planning. The legacy of the person and their loved ones can be deeply affected by the quality and type of will. Before a will can be enacted, it must pass through probate. During this time, a badly written (or executed) will – or no will at all – can lead to stress and hardship as the court drags on between all parties. I want to share with you how to handle wills to avoid these issues.
Have the Will Created by an Estate Planning Attorney
Often one of the first questions I get is, “Can I write my own will?” or “Is this a will?” Writing a will is complex, requiring a knowledge of both the state laws and probate procedures. Employing an experienced estate planner and elder law attorney is the best way to fully examine and take into consideration all aspects of the client’s particular situation. Here are some issues I commonly see:
Know What is Not a Will
A will needs to be written, and during the time of drafting the will the person must be of sound mind and at least 18 years old. Verbal contracts don’t count. While a will could be as simple as a single page of paper, not taking into consideration things like estate taxes can lead to considerable issues down the line.
Will Templates Can Create Issues
There are templates available online for use, but they create their own issues. It can be difficult to find the proper ones for your situation and state, as well as the writing used, which can introduce confusion or unintended consequences during probate. If you have a current self-drafted will, consult with an attorney to make sure there are no issues.
Make Sure That Executors and Guardians are Sound
When you’re writing the will, it’s important to get help from friends and family for the will itself, the probate process, and the distributions thereafter.
- Make Sure There are Witnesses: You should have at least two competent (of sound mind and over the age of 18) witnesses to the will being completed.
- Make Sure the Executor Understands Their Job: A lot rests on their shoulders. Make sure they are up to the task and understand how to administer your estate, including probate.
- Talk to Your Beneficiaries Beforehand: There are rarely good reasons to keep family and friends in the dark on what will happen. Explain in broad terms what to expect, including trusts.
Avoiding Probate Court by Creating a Living Trust
The best way to avoid going through probate is to create a living trust. This is an alternative to a last will. A living trust has your assets and property “in trust,” which is managed by a trustee for the benefit of your beneficiaries. It will allow you to avoid probate in its entirety because the property and assets have already been distributed to the trust. Learn more in my blog, What is a Living Trust and How is It Different from a Will?
Do you have more questions about a will or trust? I urge you to look at you to learn more about estate planning with my blog, Three Common Estate Planning Mistakes. I want to make sure that you are provided with the best information, reach out to me at Paula Smith Law to discuss your needs further.