Last Will and Testament:
A legal document created by you that states who will inherit your property after your death. Your property, also known as your “estate”, includes everything you own, including cash, bank accounts, real estate and other “personal property”, such as cars, furniture, boats, etc. A last will and testament can also name who will take custody of your minor children in the event that both parents pass away in an accident.
A will can be as simple or as complicated as the issues you need to address. The value of the estate is not the only factor. Unique family circumstances are often present, such as children or adults with special mental, behavioral or medical needs, how to deal with members of a second family, or in the case of someone who does not have any relatives, whether the money should go to friends or charities.
Not having a will means you give up the right and the opportunity to determine how your estate will be divided. Instead of you designating who will receive certain sums of money or items you own, your property will be distributed according to the laws of the state in which you last lived. These laws are commonly called the “Laws of Intestate (without a will) Succession”. This could result in certain people who are important to you not receiving what you wanted them to have, and others getting more than you intended. If there are no family members left to inherit your estate, it will go to the government of the state in which you last resided.
The other significant drawback of not having a will is that your estate will essentially be frozen; checks will not be honored, real estate and vehicles will not be able to be sold, etc. This means a relative or friend will have to apply to the Probate Court to be appointed as the “Personal Representative” of the estate. Being appointed a Personal Representative is an important job as he/she is responsible for making sure the estate is divided in accordance with your directions if you had a will, or according to the “laws of intestate succession” if you did not. Typically, a Personal Representative is paid fair value for the time and effort spent in administering the estate. Also, there are usually some circumstances where the Personal Representative is allowed to use his/her best judgment. If you did not choose the person who is making the decisions, there is no way for you to be assured that he/she even knew how you hoped things would go. Having a Will gives your heirs the right to go to court, if necessary, to ensure your wishes are carried out as you planned. Without a Will, there is nothing to enforce, as verbal statements are not enough.
Complications of Not Having a Will
Your real estate could end up being passed to distant relatives or relatives who do not get along with each other. These individuals will then have to manage or sell the property together.
You lose the opportunity to name your Personal Representative. The person appointed may be someone you did not feel was trustworthy or best suited for the job. Additionally, he/she may or may not know your wishes or may distribute your property in a manner you would not have approved. Alternatively, your heirs may fight over who should be named your Personal Representative, this can cause unnecessary stress and strife in the family as well as waste valuable assets in your estate to fund a fight in the Probate Court.
If you have a partner/significant other who you are not legally married to that person will not be entitled to any of your assets. Please remember that Massachusetts does not have common law marriage, so no matter how many years you have been together it will not confer any rights to your significant other if you die without a will.
Any legal heir of your estate will have a valid claim to his/her share, even if the person has special needs which made you question his/her ability to handle money or other assets.