Estate Planning Lawyers

Few things are as important as having a Will prepared in order to protect your loved ones. Yet, almost 50 percent of people pass away without one. Life can become busy at times and sometimes what is on tomorrow's to do list gets pushed out indefinitely. Coming to grips with our own mortality is difficult and people often think they have more time to take care of the important tasks.  Unfortunately, not planning today can lead to some rather harsh realities for our loved ones tomorrow.

At Silveri & Wilson, we take our representation, knowledge and expertise to a level above our competition. We will work closely with you to make the estate planning process as seamless as possible, while educating you about the various options that exist for your most important documents. We work with clients from all financial backgrounds and age groups, to prepare a wide variety of estate plans—from complex revocable and irrevocable trust agreements to simple Wills.

Why do I need a Will?

When someone dies with a Will they are said to have died "testate." If there is no Will, that person is said to have died "intestate" which means the Massachusetts Intestate Statute controls how the property is distributed.  A Last Will and Testament, commonly referred to as a "Will," is a legal document, drafted and executed in accordance with Massachusetts law which allows you to:

• Specify your Beneficiaries: These are family members, friends, or charities that  you want to receive your assets. You may provide for "specific gifts" such as jewelry or a specific sum of money to specific beneficiaries or you can provide for the distribution of the "residue" (or residuary) of your estate.  In other words, all of your remaining assets that are not specifically given to beneficiaries in your Will pass to the designated residuary beneficiary. If you do not have a Will, then Massachusetts Intestate Laws specifies who receives your property.
• Nominate a Guardian for Minor Children: You may nominate a person who will have the responsibility of caring for your child, should you and your spouse die before the child attains 18 years of age (the age of majority in Massachusetts).
• Nominate an Executor: This person named in your Will, acts as a fiduciary, and collects and manages your assets, pays your debts and expenses, and pays any Massachusetts Estate Taxes or Federal Estate Taxes that might be due. After doing so, the executor may then distribute your assets to your beneficiaries in accordance with your Will. You should choose your executor carefully, as they have a great deal of responsibility and control over many of your assets, and the process can take considerable time.

Wills do not Apply to All Property

Wills affect only probate property which are assets solely in your name at the time of death. This is also true for purposes of Massachusetts Intestate Laws. Some assets that may not be affected by your Will, or the Intestacy Laws, include the following:

• Life Insurance Proceeds: The proceeds from a life insurance policy are paid to the designated beneficiary of the policy—no matter who the beneficiaries under your Will may be.
• Retirement Plan Assets: Assets held in retirement plans, such as a 401(k) or an IRA, are transferred directly to the beneficiary and are outside of probate.
• Assets Owed as Joint Tenants: Assets such as real estate, automobiles, bank accounts and other property held in joint tenancy will pass to the surviving joint tenant upon your death, not in accordance with any directions in your Will.
• Revocable Living Trust: Assets held in a "Revocable Living Trust" at your death are distributed according to the provisions of that trust document. A Revocable Living Trust allows for the management of your assets during your lifetime and the transfer of those assets without a court-supervised probate proceeding. In most instances, utilization of a living trust, or testamentary trust, in conjunction with a Will is strongly advisable.

Understanding the Probate Court Process

The process by which the provisions in your Will are followed, or the manner in which the Intestate Laws are followed, after your death is known as "Probate" which is the court-supervised process developed under Massachusetts law that transfers the assets in your name at your death to your beneficiaries. It also provides for determining the validity of any claims by creditors against your estate assets at your death. At the beginning of a probate administration, a petition is filed with the Probate Court, usually by the person or institution named in your Will as executor. After notice is given, and a hearing is held, your Will is admitted to probate and an executor is appointed (or an administrator if no Will exists).

Disadvantages of probate include its public nature, expenses, and the amount of time it takes. For this reason, creating a Revocable Living Trust can save time, money, and help maintain anonymity. Assets in such a trust are removed from the probate process.

Wills and Jointly Owned Property

Even if your entire estate consists of property held in joint tenancy, a life insurance policy and a retirement plan (all of which are typically non-probate property), you should still consider making a Will, primarily because if the other joint owner dies before you do, then the property held in joint tenancy will be in your name alone and becomes probate property. If named beneficiaries die before you do, the assets subject to a beneficiary designation will now be payable to your estate. In addition, you may be entitled to a bonus, a prize, a refund, or may receive an unexpected inheritance, which would be probate property as well, requiring transfer by a Will or the Massachusetts Intestate Laws. If you have minor children, the nominating a guardian of their person and estate is also a very important reason for creating Wills in Massachusetts.

Updating your Wills and other Estate Planning Documents

You should review your Will periodically (at least every three to five years) because if it is not up-to-date when you die, your estate may not be distributed as you wished and subject to Massachusetts Intestacy Laws or estate taxes. Amending a Will can be completed easily through a document known as a codicil (a legal document that must be drafted and executed in accordance with the same Massachusetts laws that apply to Wills). A codicil is simply an amendment to your Will. Your Will must not be changed by crossing out words or sentences or making any notes or written corrections as such amendment may have serious consequences. You should also review your Will when any major changes in your family occur (such as births, deaths, divorces, and marriages), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for the persons named as guardian or executor or trustee to act in that capacity.

Storing Wills and Estate Planning Documents

The location of your original estate plan should be known by your executor and your attorney and possibly close friends or relatives. Your Will and other documents should be kept in a safe place, such as your safe deposit box, your lawyer's safe, or a locked, fireproof box at your residence. If you keep your Will in a safe deposit box, you need to ensure that someone will be authorized to access this box on your behalf after your death.

Estate Plans and Estate Taxes

Assets that are transferred to either your spouse (if he or she is a U.S. citizen) or to charitable organizations are not subject to immediate estate taxes. In terms of a spouse, no taxes are owed as a result of the marital deduction. Assets passing to other individuals will be taxed if the net value of those assets exceeds specified exemption amounts as defined by the Internal Revenue Service for that particular year. For estates which approach or exceed this value, significant estate tax savings can be achieved by proper planning. That planning must usually be completed before death and, in the case of married couples, before the death of the first spouse.

Contact our Estate Planning Lawyers in Wellesley, Massachusetts

Contact us today to learn more about how one of our estate planning lawyers can help you with your legal needs.