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Do You Have a Will


May 6, 2004

“Death never takes the wise man by surprise; he is always ready to go.”

Fables, bk 8, ‘La Mort et le Mourant’,
Jean de la Fontaine.

And why is he ready... because he has a Will.

A Will is a written instrument by which an individual can control the disposition of his or her assets at the time of death. One must be of legal age to execute a Will and of reasonably sound mind. The Will must be in writing. It must be signed before witnesses. Upon the maker’s or testator’s death, the Will is filed with the probate court for allowance.

What happens to your property if you die without a Will? When a person dies without a Will or intestate, his property is distributed to his heirs at law according to statute. One might assume that if an individual were married at the time of his death, his property would pass to the surviving spouse. This is not the case. Generally, in Massachusetts the law provides that after payment of the expenses of administration, funeral, last illness, debts, taxes and family allowances, the decedents property is divided as follows:

(i) If the decedent leaves children, the surviving spouse takes H of the personal property and H of the real estate. The balance passes to the children;

(ii) If the decedent leaves children but no surviving spouse, all real and personal property pass to the children;

(iii) If the decedent leaves no children, but there are blood relatives, i.e. parents, grandparents, siblings etc., the surviving spouse takes all of the first $200,000 and H of the remaining personal property and H of the real estate pass to the kindred;

(iv) If the deceased leaves no issue and no kindred, the surviving husband or wife takes all the personal property and all of the real estate;

(v) If the deceased leaves no spouse, no issue and no kindred, all property passes to the state.

Once you sign your Will, it is valid until you take steps to revoke or change it. Certain life events such as a marriage or divorce also effect the terms of your Will. A marriage revokes the Will in its entirety; divorce or annulment revoke only provisions affecting dispositionof property to the former spouse. It is important to review your Will every few years to be certain it continues to meet your familial and financial needs.

Please be aware that your Will does not control disposition of all your property, just your probate assets. These are assets that an individual owns in his name alone, with no joint owner or beneficiary. A Will cannot control non-probate assets. These are assets that pass to a surviving owner or an appointed beneficiary as a matter of contract at the time of the owner’s death. It is very important, therefore, to review the joint owners on your bank accounts and the beneficiaries on your life insurance policies to be certain that your wishes are carried out with regard to these assets.

If you are in need of a Will or you think your Will should be reviewed, contact one of the attorneys at Graeber, Davis & Cantwell for more assistance.



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