Understanding the Last Will and Testament

Sitting on the beach in Beverly, whenever someone asks what I do, and they hear I am an Attorney focusing on Estate Planning, I hear the same general answer. "Oh, I need a Will". Everyone deems their Will to be a necessity, the goal of Estate Planning. They view Trusts (justifiably) as entities left only for the super rich kids who will never work a day in their lives. This, as you may have guessed, is not the case. The vast majority of residents of Beverly, and the North Shore would benefit from a Trust-based plan, but that topic can be left for another time. For now, let's delve into the key functions of a will, so that the reader might better understand what they seek.

A typical Will, as part of an Estate Plan with no Trust typically does three things:

1. Asset Distribution: A will outlines instructions for the allocation of assets, including properties, investments, and personal belongings, among beneficiaries or heirs. It empowers you to designate specific individuals, organizations, or charities as recipients of particular assets or portions of your estate.

2. Appointment of Guardian: If you have minor children, a will enables you to appoint a guardian who will care for them in the event of your and your spouse's demise. By making this decision, you ensure that your children are entrusted to someone you trust and who shares your values.

3. Personal Representative (Executor) Appointment: The will facilitates the selection of a personal representative responsible for executing your wishes. The executor manages asset distribution, handles administrative tasks, such as asset valuation and debt payment, and ensures compliance with the will's instructions. Side note: Massachusetts commonly names a person to be the Personal Representative of an Estate, but this means the same thing as an Executor.

Following your passing, the Will undergoes probate, a legal validation and administration process overseen by a court. If you live in Beverly, for example, the Essex County Family and Probate Court in Salem (on Federal St) will administer your will. This process can take around a year, with costs at every step of the process.

On the other hand Pour-over wills are valuable additions to estate planning, working in conjunction with trusts. As a brief overview, Pour-over wills function as a complement to a revocable living trust, which serves as the primary vehicle for managing and distributing assets during and after your lifetime. They do this primarily through three main functions:

1. Streamlined Probate Process: Incorporating a pour-over will can streamline the probate process. Assets pouring over into the trust bypass probate, saving time and potential expenses.

2. Pour-over wills feature a catch-all provision that directs any assets not already included in the trust at the time of your demise to "pour over" into the trust. This provision ensures that any unintentionally omitted assets are accounted for and distributed according to the trust's terms.

3. Enhanced Flexibility and Privacy: By utilizing a trust, you gain flexibility in asset management, the ability to avoid probate, plan for incapacity, and potentially reduce estate taxes. Moreover, trust provisions remain private, escaping public scrutiny that accompanies probated wills.

Ultimately, your plan is your own. For some people, a will based plan utilizing a classic will will suffice perfectly. For most readers, however, perhaps a will is not the main document for your estate planning that will suit your wants and needs best. If you would like to review your options, or simply have a question as your research your wishes, let me know!