Massachusetts attorneys, Bernard J. Hamill, Quincy
 

Wills, Probate, Estate and Medicaid Planning in Massachusetts

You need a will to determine who will take your property and when they will receive it; for instance, you can direct that your property be held in trust until the person you want to receive it reaches a specified age, or you can give property from your estate to charity. You also need to choose who will administer your estate (the executor), who will raise your children (the guardian) and who the other "players" such as trustees or custodians will be. If you do not have a will, the state intestacy statute applies, and the state determines who will receive your property. With a will, you can broaden the powers your executor will have, such as the power to sell real estate without license of the court. You can also direct the executor to serve without sureties on his or her bond.

Can my spouse and I have a joint will?

No. There is no provision for joint Massachusetts Wills. Both you and your spouse need separate wills, even if you own all your property jointly. When the first spouse dies, all joint property will pass to the survivor. Therefore, the survivor who becomes the sole owner of the property needs a will. Because there is no way of knowing who will die first and who second, both spouses need wills. Also, you may own property - either in the future or even now without knowing it - that is not held jointly with your spouse.

Where should I keep my will and other estate planning documents?

Have your lawyer keep the original of your will. Keep copies in your safe deposit box or strongbox. You may want to give a copy to the named executor; however, if you later change your will, have the executor give that copy back. Note that only one original will is signed. There can be more than one executed copy of the durable power of attorney or health care proxy. The attorney should hold an original copy, with other copies kept in your safe deposit box. Your attending physician should be given a copy of the health care proxy to be made part of your medical records.

How and why should I change my will once it has been signed?

Once you have made your will, you cannot just put it away and forget about it. You should review your will every three to five years, to make sure it still accomplishes your desires; however, it may be necessary to review it even more frequently if
you have married, divorced, separated or remarried(marriage revokes a will; divorce revokes the provisions concerning the spouse);
a child or grandchild has been born;
you have changed domiciles;
there is a change in tax laws;
your assets have increased or decreased in value; or
your relationship with a beneficiary has changed or a beneficiary's needs have changed.

A will can be changed, revoked or replaced by a new will at any time, so long as you are competent. To be considered competent, you must understand the nature of your act, know the extent of your estate and know who are the "objects of your bounty" - i.e., the people you want to benefit.

A will can be changed by signing a codicil, which is an amendment to a will, with the same formality as a will - i.e., before two witnesses and a notary public.

A will can be revoked by tearing it up, canceling it or signing a new will.

Who should I choose to be my executor?

People often pick their spouse, a friend or neighbor, or a relative to act as executor. This choice is often made so as to save on administrative costs or to honor an individual. However, as tax compliance and postmortem elections become more complicated, this choice may impose a real burden on the individual and not achieve the original goal.

The executor should be trustworthy, highly competent, have a good knowledge of the tax laws and have good financial judgment and business sense. A choice might be a bank trust department or an attorney.

Another possibility is to name a family member as co-executor with a professional. In this way the personal interest is mixed with professional expertise and management.

 

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