Making Sure Your Will Is Followed

If you haven’t gotten around to putting a Will in place, or you haven’t updated the one you did years ago, you run the risk that when you’re gone; things won’t go the way you want them to. It’s important to recognize that no matter how many or how few assets you have – if you have a minor child, you need a Will naming who will be guardian if both parents die. If you don’t put this in place, your kids could wind up the center of an ugly court battle, be pushed on a relative who doesn't want them, or be stranded in the foster-care system. To be safe, list your first choice for guardian as well as a back-up or alternate guardian.

Also, many people think that if something happens to them their husband or wife automatically gets everything in their name – and that just isn’t the case in many states, including Massachusetts! If you die without a Will you’re considered to have died “intestate” – and the laws of your state will determine who gets what.

You should be protected so long as your Will is drafted correctly, nothing has invalidated any portion of the Will, and you sign the Will according to the requirements of your particular state. For instance, different states can require a different number of witnesses to watch you actually sign the document! If you don’t do it right – it’s like you never had a Will at all. That’s why you want to leave the “do-it-yourself” kits on the store shelf and forget the forms on the internet – when it comes to the nuts and bolts of putting your Will together, consult with an attorney who does estate planning.

When you’re planning to do a Will, think about what you have and who you want it to go to. The person or people who inherit your assets are called beneficiaries. For example, people typically leave everything to their spouse, but if their spouse doesn’t survive them, then they leave everything to their children. What catches most people off guard is when their attorney asks them where their assets should go if no one in their immediate family survives them. Many times they want siblings, or nieces and nephews, or a charity to get their assets – that’s why everything needs to be spelled out in the Will.

Remember that assets with specific beneficiaries, like in the case of a life insurance policy or an IRA, do not pass through your Will. So keep that in mind when you are figuring out who gets what. As for listing specific things in your Will, if you want someone to get a particular item like a piece of jewelry or a family heirloom or a specific amount of money, then you need to list that. But if you are thinking about having your overall assets split, for instance, between your children then your attorney will probably suggest your assets pass to them in “equal shares” or whatever percent split you want. Otherwise, you run the risk that by the time the Will takes effect, one or more of the assets you listed no longer exists. For example, if you have two children and in your Will and you leave your house to one child and your vacation home to the other, by the time you pass away that vacation home could have long been sold and the child who was supposed to get it gets nothing!

Sometimes, you may want to make sure a certain person doesn’t inherit anything under your Will. It may be because you have provided for them in other ways, or you just don’t want them to get anything! Depending on your relationship with who you are looking to omit, you may have to actually put something in the Will saying exactly that. But don’t worry – if you want your attorney can come up with some language that will soften the blow – but still honor your wishes!

You’ll also want to decide who will act as the Executor of your Will – meaning who will oversee making sure what you want actually gets done. It’s always a good idea to have a first choice and a back-up. That person may or may not be a beneficiary, it’s up to you. You will also want to think about who will oversee any money that is to be inherited by a child – that person is called the “trustee.” It can be the same person you choose as guardian, or a different person. You’ll also want to decide how old a child should be before they get their inheritance directly. Many people want to have a trustee overseeing the money until a child is 21 or 25!

It’s a good idea to pull out your Will and take a look at it at least every few years – just to make sure the people you have named as executor or trustee or guardian are still good choices. If you get married, get divorced, or remarry – you’ll want to revise your Will. And, of course – if at any time there is a significant change in your net worth or you have or adopt a child, you’ll want to check in with your attorney to see if changes need to be made to your estate planning documents. Just remember, if you make your wishes clear in the proper estate planning documents – no one will be able to act against your will!

Copyright 2009 - Law Office of Gina M. Ghioldi, P.C.

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