Wills and Estates FAQ’s

All my property is joint with my spouse. Why do I need a will?

You are smart to have been careful to title all your assets jointly. Joint assets pass by operation of law to the surviving joint owner, unless there is evidence to prove you intended another result. Often, however, either a “dangling asset” missed being jointly titled, or an asset comes into being with your death. This might be a check payable to you (paycheck, reimbursement for insurance, or other), or a cause of action, such as a loan repayment owed to you or a wrongful death claim. Your Will tells the court which person is your choice to handle these affairs, to be your Personal Representative, with power to carry on your business. If you have no Will, Massachusetts law provides who will be your Personal Representative, and how your assets will be split.

I don’t have that much in the way of assets, just my house. Why do a will?

For most of us, our house is the single biggest asset of our lifetimes. If your home is jointly owned with another person, your interest passes to the surviving joint owner. If it is individually owned, then it passes under Massachusetts (MUPC) intestacy law, according to the shares dictated by the statute. While intestacy law tries to adopt the most usual or likely distribution scheme, it is no replacement for a Will, which specifically states your own wishes as to who takes the property and in what percentage. It is also often that either a “dangling asset” comes along payable to you after your death, or an asset comes into being with your death, such as a cause of action, loan repayment owed, or a wrongful death claim. Your Will tells the court which person is your choice to handle your affairs, to be your Personal Representative, with power to carry on your business. Then your Will directs who gets the asset, and in what percentage.

I have (or my spouse has) children from another marriage. What do I need to do?

Although the implementation of the Massachusetts MUPC has made progress in adjusting intestate (no Will) shares to blended families, it is still no substitute for good planning. Massachusetts law requires you to address each of your children, either by making provision for them, or by clearly and intentionally omitting them. If, for example, you have adult children from a previous relationship, and are either married or have minor children from a present one, declaring your wishes through your Will is a huge favor to all concerned. Your Will needs to address each child, and your spouse, with a plan for their benefit. At Karsner & Meehan, we have worked with many blended families to develop strategies to meet their individual needs.

I have a valid Power of Attorney from 1990. Is it effective?

Most certainly. However, even if your selected Attorney-in-Fact has not changed, the law has. We recommend that you take advantage of current law to streamline your Attorney-in-Fact’s authority and execute a new Power of Attorney. By doing so, you can eliminate the need for emergency court intervention in many modern situations not covered by dated Powers of Attorney. There are few documents as useful as this one.

I hate to surrender my authority to handle my own affairs during my lifetime. But I’d like to give power to my children in case I become unable to do that. What can I do?

You are smart to recognize that the need may arise unexpectedly. Massachusetts law provides many options for this kind of advance planning. Perhaps a Springing Power of Attorney will accomplish your goals, or a Trust, or a Life Estate Deed, or another of numerous options can be reviewed to see what meets your needs.

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