Estate Planning – Do I Really Need a Will?

Let’s start by answering the question “What is a Last Will and Testament?”

According to Black’s Law Dictionary a will is “(1) a wish, desire, choice; (2) A document by which a person directs his or her estate to be distributed upon death.1 ” A testament is defined as “A will disposing of personal property.2 ”

Both definitions are quite accurate. A Last Will and Testament allows YOU to (1) express your wishes/desires and choose how you want your personal property/estate (house, car, monetary assets, jewelry, etc.) disposed of, (2) allows YOU to choose the person or persons in charge of this process, and (3) if you have minor children, name YOUR choice of Guardian and/or Conservator for your children.

Many people hesitate in making a Will because it seems overwhelming….how do I allocate ALL my property in this document. Good news, you don’t have to. A Will addresses only PROBATE property – property owned by you in your name only. This property excludes retirement accounts and insurance policies with appropriate designated beneficiaries; other forms of property are also excluded from the definition of probate property. Additionally, under the current laws a memorandum listing all your tangible personal property (paintings, jewelry, furniture, car, stamp collection, etc. – a/k/a “stuff”) can now be allocated (devised) to the person(s) of your choice OUTSIDE the official Last Will and Testament. This document is enforceable and can be drafted at your leisure and revised as many times as you like. This memorandum does not require the same formal execution as does the Last Will and Testament; it just needs to be mentioned in the Will.

If you die without a Will, you die “intestate.” That means you die without a valid will. Under an intestacy scenario, all your property and the person who distributes it must adhere to the Intestacy Laws of the Commonwealth of Massachusetts. What this means is the distribution of your assets is not governed by your wishes, but by Massachusetts law and under that law can be distributed to parents (if living), spouse, children, siblings, cousins, etc., in percentages/amounts proscribed by law (depending on your circumstances). It also means this process may not be handled by the person of your choice. Intestacy will likely involve Court oversight, making the process more expensive and longer.

So hopefully the answer do “do I really need a Last Will and Testament,” is “Yes.” By having a properly drafted and executed Will YOU state your wishes/choice with regard to where YOUR property goes and who directs/oversees that process and those wishes are carried out.

(1) Black’s Law Dictionary 1592 (7th ed. 1999).
(2) Id. at p. 1484.