
Before we discuss the common misconceptions that many of our clients have about their Last Will & Testament, we should ask, “What is a Last Will and Testament?”
The Last Will and Testament is a document in which you designate who will receive your property after your death. It is used by the Probate Court to transfer property that is owned in your name alone at your death to your heirs. In most Wills, you will name a person called a “personal representative” (formerly executor/trix) who will bear the responsibility for administering your estate. The personal representative is the person who works with your lawyer and the Probate Court to transfer your property to your heirs.
Often when we meet with clients for planning, they have several misconceptions about what a Will can and cannot do regarding their goals. Below we hope to eliminate some of these misconceptions and help emphasize the importance of proper estate planning.
1. A Will is Probate.
Often while meeting with a prospective client for the first time and reviewing their existing estate planning documents, they’ll say to me, “I already have a Will, so I don’t have to worry about Probate, right?” Wrong. A Will is Probate. As described above, in order to execute the wishes expressed in your Last Will and Testament, the document must be probated. This means, the Personal Representative must submit the Will, along with a petition, to a judge for approval. This is the probate process. The timeline for submitting the probate petition, receiving authority from the court, filing an inventory of assets within the estate, liquidating assets, selling property and finally closing the estate could take 12 to 15 months, if not longer. Often, the cost and delay of probate can be avoided through some basic estate planning techniques such as proper beneficiary designations or a trust.
2. Sometimes we actually want Probate.
Despite the cost and delay of the probate process discussed above, sometimes an individual may want his or her estate to go through probate. Why?
Well, perhaps the individual has minor children and were both spouses to pass away simultaneously, they want their minor children’s inheritance to be held in a trust until they obtain the age of 25. Also, they want to name within their Wills someone who will raise and care of their minor children in their place.
Also, sometimes the client wishes to establish a testamentary special needs trust for the benefit of a disabled person who is receiving, or may in the future receive, needs-based government benefits. Assets held by a special needs trust generally are not considered to be owned by the beneficiary of the trust. Therefore, if the beneficiary of the trust applies for Medicaid the trust assets will not count.
3. The Will May Not Distribute All of the Decedent’s Assets.
The Last Will and Testament distributes probate assets only. A probate asset is an asset that was held solely in the name of the deceased person. For example, a bank account owned in your name individually or a retirement plan or life insurance policy without a beneficiary named. Often clients mistakenly believe their goal of equally distributing their assetsupon their death will be accomplished through the Will, when in actuality an improper beneficiary designation could supersede the Will causing unequal distributions to your beneficiaries.
4. Only older people need a Will.
As a firm, we think proper estate planning is so very important. If you are over the age of 18 and are of sound mind, you should execute foundational estate planning documents, including a Will. Particularly, you should have a Will if: a) you have minor children, b) you have personal property or family heirlooms that you want a specific person to receive at the time of your death, c) you are married and own property together, d) you have an unusual distribution scheme in mind after you pass away, and e) you were married previously and have children of a prior marriage.
Are you unclear on what benefit a Will can offer you? Consider attending an upcoming seminar or schedule a no-obligation consultation with one of our estate planning attorneys at 508-994-5200.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article.
DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.