Wills
A Will determines how your property will be distributed upon your death. For most people, this is the most important feature of a Will. A Will ensures that your property is distributed in accordance with your wishes.A Will allows you to choose your Executor who will administer your estate, choose a Guardian who will take care of your minor children, and choose your preferences regarding burial, cremation, which funeral home, which church, what type of service, etc.
A properly prepared Massachusetts Will explicitly sets out your Executor's powers. This greatly simplifies and expedites your Executor's job. An Executor is a person or institution appointed by you to carry out your wishes as stated in your Massachusetts Will. If your Will does not name an Executor, a suitable person will be appointed as the Administrator of your Estate by the Probate Court to do the same job. There is no difference between the Executor of an Estate and the Administrator of an Estate other than the name. The Executor's job may last anywhere from one and a half to three years. The Executor of your Estate will collect your property, take an inventory, pay your debts, prepare estate tax and income tax returns, pay the taxes when due, distribute the remaining property of your Estate according to the terms of your Massachusetts Will, and, when everything else is completed, prepares a final account for allowance by the Probate Court.
A Will must be carefully drafted to comply with Massachusetts law. A Will does not take on the power of a valid legal document until the Will is filed with the appropriate Probate Court when the Testator dies.
If you do not execute a valid Massachusetts Will, you will be leaving the distribution of your Estate up to the Probate Court. The Probate Court will refer to Massachusetts General Laws, but the default plan laid out for you by the Massachusetts legislature will not likely reflect what you would have chosen if you had executed a Will ahead of time. If we design a plan for you that includes the use of a Living Trust, then, upon your death, your Will would be drafted in a way that will leave any part of your Estate not already transferred to your Living Trust before your death to your Living Trust. This is why it is referred to as a pourover Will. Your Will “pours over” any assets in your Probate Estate into your Living Trust. The Trustee of your Living Trust will then manage your Estate according to your instructions. A pour-over Will functions as a safety net to insure that property owned in your individual name at the time of your death (rather than in the name of your Living Trust) will ultimately be managed by your Trustee as provided in your Living Trust. However, it is advisable to have your Estate avoid Probate Court altogether by transferring all of your assets to your Living Trust prior to your death. Your Will should serve mainly as a backup document that ensures that all the assets of your Estate are ultimately controlled by your Living Trust.