Local Expert Q&A: The Importance of a Will

Community Experts: Will & Estate Planning

When we look at our communities and we think about community resources we have access to, our elders and community experts are an important asset to our community-based educational resource landscape.  Their sharing of knowledge and skills is a type of collaborative consumption that leads towards sustainable and resilient communities while supporting interests and education.  For many parents, both new parents and grandparents, estate planning is an interest they have many questions about… so we have turned towards two community experts with questions generated from our readers who have been generous enough to share their expertise with our readers, attorneys Mark NeJame and Julie Kling of NeJame & Kling Law Offices.


Attorneys NeJame and Kling write:

The importance of a Will is primarily leaving a “road map” for your family to know your decisions about how you want the property (including real estate, cash, shares of stock, etc) you own at your death to be distributed.  In some cases, a properly drawn Will makes it much easier and quicker to transfer the property, especially real estate.  Think of a Will as a legacy where you make the decisions about your property for your family, limiting discussion, and hopefully limiting discord within your family when you are gone.  The will can also include, in the case of minor children of the deceased, your preference for the care and guardianship of your children (see Q&A below).

The basic elements of a Will are:

  1. Who will be in charge of your property, your “Estate” — formerly called an Executor, this person is now called a “Personal Representative” — and the extent of her/his authority.
  2. Who will become
  • Owner(s) of your personal property (your stuff),
  • Owner(s) of your financial assets (bank accounts, CD’s , some investments), and
  • Owner(s) of your real estate (note:  depending upon how you hold title, your Will may or may NOT determine who receives your property at your death).

Be careful of the following:

  • Don’t assume you know what will happen to your property if you die without a Will because the pertinent Massachusetts law changed significantly in 2012.
  • A handwritten Will without proper witnessing and notary is not valid in Massachusetts.
  • Massachusetts does not recognize “common law marriage.”
  • You remain married until you receive your final divorce decree.
  • Adopted children are considered blood relations when determining who inherits.
  • You cannot “disinherit” your spouse in your Will.

Q — Chalet Seidel writes: As a single parent, I’d like to know what steps I need to take to ensure that my child would go to the legal guardian of my choice and that my life insurance benefits be available for his care.

A —
Guardianship:  If your child’s other natural parent is still living and available (not incarcerated, not prevented from custody by court order), s/he has priority and often becomes the guardian without court appointment. If s/he lives in another state forcing a difficult move or is not a person who you believe would act in the best interests of the child, or if no natural parent is living, you should nominate someone else to be your child’s guardian. This can be done within a Will, but it is better practice to prepare a separate, legally signed and notarized document to nominate a guardian and successor guardian.

It’s important to understand that you may only nominate a guardian—this person would have to file a petition after your death in the probate court to determine what is in the best interest of the child. Your written nomination is very important but is not a guarantee as to whom the Court will appoint. The court will hold a hearing and will take testimony if necessary. A child aged 14 years or older is entitled to file an opinion and is often interviewed by the judge in the judge’s chambers (offices behind the bench) to determine where the child wants to go.

Life Insurance:  your life insurance policy already has a designated beneficiary which determines who is legally entitled to the insurance proceeds upon your death. Those proceeds are paid directly to the named beneficiary, regardless of what your will or any other contrary document may say.

For a child who may still be a minor when they receive the life insurance proceeds, you may set up a “custodial” bank account in your child’s name, with the name of the adult who will have access to the funds (the “custodian”). This person is often the guardian–but not always.

Upon your death, the insurance company will then issue a check to the named custodian on the account for the benefit of your child or children. The child can gain access only at age 21, when the account is to be paid out to the child and closed. Obviously you will need to choose a custodian in whom you have utmost confidence. You should also be careful who you choose as the successor beneficiary.

Depending upon the extent of the insurance proceeds and your other financial assets, a Trust may be recommended to handle more complicated situations.


Q — Diana Chaplin writes: What should be included, what are the steps necessary to making it a legal document, and how/who to save it with to ensure the appropriate people are notified if events should warrant it’s necessity.

A —
What should be included in a Will and what are the steps necessary to make it a legal document? 
   Consult with a Massachusetts attorney to make sure your Will and other Estate Planning documents accomplish your goals and are correctly and legally written and signed. Most Massachusetts Estate documents require two witnesses and a notary.  A Will typically includes the name, addresses and other contact information of those persons you wish to have your property after your death.  It may contain your wishes as to any real estate you own.  Finally, if you have children under the age of 18, it may contain a guardianship nomination and/or your instructions as to when your children receive their inherited property and who will manage that property before they reach the designated age.

Where should your original Estate planning documents be kept and who should receive a copy?

  • It is recommended that you sign multiple original Wills:  one for your Personal Representative, one to his/her successor and one which you keep at home in a fire proof filing cabinet with all of your other important documents.
  • If you create a health care proxy, it is extremely useful to make as many as 5 original documents so that you can file one with your primary care physician and any other regular medical practitioner, one with the person who you’ve chosen as your health care agent, one with your successor health care agent, and one you keep at home with your important documents, where it may be easily found.
  • For a Durable Power of Attorney: two originals should go to the person you’ve chosen as your attorney-in-fact and one to his/her successor.

Your Estate Planning attorney should keep copies of all of the Estate Planning documents that you execute.  Sometimes a copy is sufficient in an emergency. The attorney’s office may receive calls from hospitals, nursing homes, etc when a family doesn’t have the right documents for what they need. DO NOT KEEP YOUR DOCUMENTS IN A SAFE OR SAFE DEPOSIT BOX or any other locked place.  Your documents should be accessible in an emergency. Some people, usually elders, take their Wills to the Probate Court and have them kept in a file.  Filed at the Court, they are not available to the public (or family) and are only released upon the death of the filer.


Q — Julie Bartlett Nelson writes: Guidance in choosing a guardian.

A —
A guardian for a child is different from a guardian for a disabled child is different from a guardian for an incapacitated adult is different from a mentally retarded individual. Anyone who seeks to be a guardian for any of the types of individuals who need care must petition the Probate Court located in the County where the “protected person” lives and provide factual information – often medical information – which proves to the court that the person needs a guardian and evidence that the person petitioning the Court is someone who will act in the best interests of the protected person.

If an adult has executed a durable power of attorney and/or health care proxy, the court is pre-disposed to appoint that person as guardian, using the legal document as evidence of who the protected person would choose if they were able. In Massachusetts, a guardian has the authority to act in the best interests of the protected person, but does not have authority over the protected person’s assets. A separate conservator must be appointed — often the guardian and conservator are the same person. Guardians and conservators must account to the Court every year and are required to be supervised by the Court. Many decisions must be submitted to the court.

A guardian for a child is a special consideration for the Court. If the child has a natural parent living, that person is usually considered the legal guardian of the child. There are many circumstances in which a natural parent may not be qualified to be the guardian, such as a criminal record, addiction to prescription and/or illegal substances or alcohol, housing issues and the like. As to whom you should choose as a guardian, it is recommended that you select a guardian who shares many of your values and who would be a full participant in your child’s life, not just a babysitter. In addition, a guardian should treat your child as a member of a household or family, providing a home where your child felt he or she belonged and was cared for. For older children especially, the stability of their school and environment may also be considerations in choosing a guardian.


Q — Julie Bartlett Nelson writes: Can I write one myself with free forms or do I need to go through a lawyer. How much is typical to pay for creating a will?

A —
Many people believe that a handwritten will is valid in Massachusetts – this is not true. There are available free estate planning forms (usually Wills) downloaded from the Internet, which are advertized as being “valid in your home state.”  There are also websites that charge for their forms which make the same claim. The reality is that many of these forms are not valid in Massachusetts, especially since the laws and procedures involving wills changed drastically in March 2012.

An experienced Estate Planning attorney might conclude that many of these Wills simply aren’t good enough — they over-simplify the questions and issues, leaving people who use them with Wills that don’t carry out their wishes. Your free Will may work just fine or may end up with a result that you didn’t want nor anticipate.  See the answer below as to cost.


Q — How much does it cost to have a Will created and how difficult is it to update it later in life.

A —
The cost of an Estate Plan:
  The cost of a Will depends on how much time it takes you and your attorney to determine what to include in your Will and to get all of details needed to complete the Will. Most Wills take at least 2-3 hours to make. Some Estate Planning attorneys find it useful to ask clients to provide a written family tree with names and addresses, a list of assets, their choice (and “backup” choice) for a Personal Representative (formerly called Executor) and other important information.  For a single person, based upon an average hourly rate in Hampshire County, you can anticipate a “simple” Estate Plan costing from $450.00 to $850.00.  For a couple, married or unmarried, the range is typically $550.00 to $1,250.00 – these are approximate figures depending upon the complexity of the documents, the attorney’s hourly rate and the time it takes to make certain that the documents correctly reflect your wishes.  Before you hire your Estate Planning Attorney, request an estimate of the total cost of the Estate Plan, being certain that the estimate will include your visit to the attorney’s office to execute the documents.  Some attorneys will travel to their client’s home or to a nursing home (or similar facility) if the client has difficulty driving or cannot travel.  Be aware that some practitioners create complex Estate Plans costing thousands of dollars – in most cases, the average Estate Plan does not require this alternative, and obtaining an estimate before engaging an attorney will avoid this misunderstanding.

How difficult is an Estate Plan to update later in life?  It is possible for an experienced Estate Planning attorney to draft a Will to be as flexible a document as possible, accommodating most changes that come to an individual. In order to anticipate that an individual’s personal property may be given away, acquired, sold or otherwise accounted for during one’s lifetime, one option many people choose to include as part of their Will is a simple informal document called a Memorandum.  This consists of a separate document referred to in the Will, listing any specific personal property (things) which they want to give to a specific person and who should receive them. This document can be changed many times without having to change your Will.

If a major change needs to be made to your Will, depending on the circumstances, you may need a new Will or simply a codicil which is a properly written legal amendment to your Will which must be signed in front of two witnesses and a notary. An estate planning attorney can prepare a codicil easily and inexpensively if you have your original Will to work from.

A Will always needs revising if you have either divorced or (re)married. A Will written in another state should be reviewed to insure that it conforms to Massachusetts’ requirements for a valid Will. Quite often, an out-of-state Will is fine as is or needs a simple codicil.

Most Estate Planning attorneys monitor all changes in Federal and Massachusetts law in this area, some of which may prompt your attorney to recommend updating your estate planning documents.  Many attorneys will review your estate planning documents without charge to determine if an update is needed or recommended.


ABOUT OUR COMMUNITY EXPERTS

Mark NeJame and Julie Kling are attorneys that give back to their community in Western MA.   Mark has contributed and continues to contribute pro bono legal work for Grow Food Northampton and The Ruggles Center while Julie has contributed her legal talents at no charge for Homeward Vets and League Legends, Inc. Their practice, NeJame & Kling Law Offices of Northampton and Florence, is a general practice law firm with concentrations in Estate Planning & Probate, Real Estate, Business and non-profit corporations. Mark NeJame grew up in Lenox, Massachusetts, attended college in Vermont. Julie Kling grew up in Gilford, New Hampshire and attended Smith College. Both Mark and Julie graduated from Suffolk University Law School became attorneys in 1983. After working for two different Springfield law firms from 1985 to 2002, Mark established Law Office of Mark NeJame in 2002 which became NeJame & Kling Law Offices when Julie “unretired” in 2008.

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