Massachusetts Wills and Estate Planning Attorney

Massachusetts Wills, Trusts and Estate Planning Attorney
Sudbury • Wellesley • Concord • Lexington • Weston • Boston Massachusetts

Phone: (978) 443 – 3334
Nights and Weekends: (508) 400 – 7012

The Law Office of Attorney Mark Helwig provides consultation in the areas of Estate Planning, Wills and Trusts. Everybody needs a will. A will does a number of things. It states who inherits a person’s assets when he dies, the beneficiaries. It also names the person that the will maker chooses to administer the estate, the executor. (The term estate means the assets of a person who has died). A will can also name the guardian of any minor children. A will can also include a for the benefit of minor children which can determine when and in what circumstances the child receives money from the trust. The person who administers the trust is called a trustee.

What Happens if I Die without a Will?

If a person dies without a will, he or she is deemed to be intestate. This means that the person who has died (the decedent) does not determine who inherits his or her assets (the estate). Instead, the law will decide who inherits, under the state’s Intestacy Statute. (Intestacy merely means that a person died without making a Will).

Just because a person dies without a Will does not mean that all of his or her assets go to the state. Rather, under the Intestacy Statute, the assets are distributed among his or her spouse, children, and possibly other relatives. In order for the person’s assets to revert to the state, a situation termed escheat, the decedent would have to have no living relatives.

This does not mean that a person should not have a Will. Without a Will, a person cannot decide who will receive the person’s assets - the state’s Intestacy Statute will make that determination. Furthermore, without a Will, the decedent will not decide who will handle, or administer, the estate. Naming an Executor to administer the estate is important. Moreover, for people with children, without a Will, the decedent will not have a say in who is appointed Guardian of the person’s children. Finally, without a Will, a person cannot set up a Testamentary Trust for the benefit of those children. For these reasons a Will is very important. Contact an experienced Massachusetts Estate Planning, Wills and Trusts attorney.

Married with Children

Wills are prepared for worst case scenarios. Many of my Will clients are married couples with minor children. The purpose of Wills for this class of person is not usually focused on who will receive the assets in the case of the death of one or both parents - usually the beneficiaries are the surviving spouse, or in the alternative, the children. Rather, the focus is on the naming of Guardians of the minor children, and the establishment of a Trust for the benefit of the children.

The purpose of naming Guardian(s) is obvious - the Guardians are the people who will make decisions regarding raising your children if both parents were to pass away while the children were still minors.

Creating a Testamentary Trust is an additional benefit of making a Will. A Testamentary Trust is a way to ensure, in the event both parents die prematurely, that your children do not squander their inheritance when they are at a young age when they are not prepared to deal with a significant amount of money.

The benefit of a Testamentary Trust can be illustrated as follows. Take a standard situation of a married couple with minor children. In most cases, the persons Will will name the surviving spouse as the first, or primary, beneficiary. This means that when one spouse dies, the survivor inherits all of the assets of the first spouse. What happens if both parents die, however?

Usually, the parents’ children are named as beneficiaries. If this is all that is provided, and the children are under the age of eighteen, as soon as the children reach the age of eighteen, they will have full control over their inheritance. In most cases, this is not an ideal situation. The child is eighteen years old, without parental guidance, and in control of a significant amount of money. The child may make bad decisions. He or she may decide to buy an expensive car instead of using the money to pursue a college education. He or she may make some other bad money decisions. By the time the child reaches his or her early twenties, all the money may be spent.

How does a parent prevent such a situation? By establishing a Testamentary Trust in their Will. A Testamentary Trust comes into existence only in a situation where the parent has children under a set age. Instead of gifts outright to the children, the parent names a Trustee who uses the money for the benefit of the children until the children reach a predetermined age. In many cases, the Trustee is empowered to use the trust money for the benefit of the child - to pay for living expenses and education expenses. In many of the Wills I draft, when the child reaches the age of 25, he or she receives a portion of the TrustFund outright. Then when he or she reaches the age of 30, the rest is distributed. In the meantime, the Trustee is given the discretion to pay for college expenses, or other expenses. The terms of the Trust are in the complete discretion of the parent - including the ages of distributions, and the permissible uses of the trust fund for the children. The Testamentary Trust is a powerful tool to prevent the squandering of money by the parents’ children. It is also an easy thing to create - it does not come into existence unless and until the parent dies and the children are young. No special bank accounts or tax planning is required.

Not Married With Children

A Will is likewise important for single or divorced parents. Again, as with married parents, a single parent can name Guardian(s) and Trustee(s). A Testamentary Trust can still be set up for the benefit of children.

What Assets Does a Will Affect

One of the myths about Wills is that they will determine who will receive all of the assets owned by the maker, or Testator. This is not necessarily true, and in many cases, not true at all. A Will will only transfer assets in the sole name of the Testator. If a person owns property jointly with right of survivorship, for example, a home owned by a married couple, the Will will not affect the distribution of this asset. The same rule applies in most cases to joint bank accounts. In both of these cases, the asset will automatically pass to the surviving joint tenant. Similarly, life insurance and retirement plans pass to named beneficiaries under the terms of the life insurance contract or retirement plan. For this reason, it is important not simply to write a will, but to make sure that assets are properly titled to effectuate the intent of the Will maker.

Massachusetts Health Care Proxies and Living Wills

When I draft Wills for clients, I also draft two additional documents at no additional charge, a Health Care Proxy and a Living Will. These documents are related, but in some respects, very different.

A Health Care Proxy names a person to make health care decisions in the event the maker is unconscious or otherwise unable to make health care decisions for himself or herself. Health Care Proxies are recognized by statute in Massachusetts. They enable a loved one to make health care decisions when the maker is unable to do so.

By contrast, a Living Will is effective only when a person is in an incurable and irreversible terminal medical condition with no reasonable expectation of recovery. A living will informs the person’s doctor that if the maker is in such a condition, he or she does or does not want certain medical treatment, such as kidney dialysis, mechanical respirators, tube feeding, blood, or antibiotics.

Both of these documents are important, and are included in the standard estate planning package prepared at the Law Office of Mark Helwig.

Conclusion

This is just a brief summary of the field of estate planning. Everybody needs a Will. People should also make Health Care Proxies and Living Will. Preparing these documents not only provides peace of mind, but also can be important in worst case scenarios that all people hope will not happen to them.

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Evening and weekend appointments can be arranged.

Law Office of Mark W. Helwig

323 Boston Post Road
Sudbury, MA 01776
Phone: (978) 443 – 3334
Nights and Weekends: (508) 400 – 7012
Toll Free: 1-866-850-3334
Fax: (978) 443-1633

With offices in Sudbury and Framingham, Massachusetts Estate Planning attorney Mark W. Helwig serves clients throughout Boston MetroWest and all of Massachusetts, including Natick, Waltham, Worcester, Wellesley, Newton, Needham, Dedham, Marlborough and Cambridge Massachusetts.