Wills Law Frequently Asked Questions
Learn about Wills and the Massachusetts Intestacy Laws

Wills are legal documents, drafted and executed in accordance with Massachusetts law. When someone dies with a will they are said to have died "testate". If there is no will, then that person is said to have died "intestate".  

Wills allow you to name your beneficiaries. These are family members, friends, or charities who you want to receive your assets. You may provide for "specific gifts" such as jewelry or a specific sum of money to specific beneficiaries. You should also provide for the distribution of the "residue" (or residuary) of your estate—your remaining assets which are not specifically given to beneficiaries in your Will. If you do not have a Will, then the Massachusetts Intestate Laws (also called the "Intestacy Statute") specifies who receives your property.

Wills also allow you to name a Guardian for your minor children. You may nominate a person who will have the responsibility to care for your child if you and your spouse die before the child attains 18 years of age.

Last, Wills allow you to name an executor. This person named in your Will collects and manages your assets, pays your debts and expenses, and pays any Massachusetts or Federal Estate taxes that might be due. After doing so, the Executor may then distribute your assets to your beneficiaries in accordance with your Will. You should choose your executor carefully.

Below, please find some frequently asked questions.

Do Wills Apply to Everything I Own?

How Are The Provisions of Wills Carried Out?

Do I Need a Will if All of My Property is Already Non-Probate Property?

Can Wills Be Changed?

How Should Wills be Stored?

Will My Beneficiaries Have to Pay Estate Taxes?

What are the Purposes of Wills?

Wills are legal documents, drafted and executed in accordance with Massachusetts law. When someone dies with a will they are said to have died "testate". If there is no will, then that person is said to have died "intestate".   Wills allow you to name:

• YOUR BENEFICIARIES: These are family members, friends, or charities who you want to receive your assets. You may provide for "specific gifts" such as jewelry or a specific sum of money to specific beneficiaries. You should also provide for the distribution of the "residue" (or residuary) of your estate—your remaining assets which are not specifically given to beneficiaries in your Will. If you do not have a Will, then the Massachusetts Intestate Laws (also called the "Intestacy Statute") specifies who receives your property.

• A GUARDIAN FOR YOUR MINOR CHILDREN: You may nominate a person who will have the responsibility to care for your child if you and your spouse die before the child attains 18 years of age.

• AN EXECUTOR: This person named in your Will collects and manages your assets, pays your debts and expenses, and pays any Massachusetts or Federal Estate taxes that might be due. After doing so, the Executor may then distribute your assets to your beneficiaries in accordance with your Will. You should choose your executor carefully.

Back to Top of Page

Do Wills Apply to Everything I Own?

No. Generally speaking, Wills affect only those probate assets which are solely in your name at the time of death. This is also true for purposes of the Massachusetts Intestate Laws. Some assets which may not be affected by your Will, or the Intestacy Laws, include:

• LIFE INSURANCE: The proceeds from an insurance policy on your life are paid to the designated beneficiary of the policy—no matter who the beneficiaries under your Will may be.

• RETIREMENT PLANS: Assets held in retirement plans, such as a 401(k) or an IRA, are transferred directly to the beneficiary.

• ASSETS OWNED AS A JOINT TENANT: Assets such as real estate, automobiles, bank accounts and other property held in joint tenancy will pass to the surviving joint tenant upon your death, not in accordance with any directions in your Will.

• Revocable Living Trust: Assets held in a "Revocable Living Trust" at your death are distributed according to the provisions of that trust document. A Revocable Living Trust allows for the management of your assets during your lifetime and the transfer of those assets without a court-supervised probate proceeding. In most instances, utilization of a living trust, or testamentary trust, in conjunction with a Will is strongly advisable.

Back to Top of Page

How Are The Provisions of Wills Carried Out?

The process by which the provisions in your Will are followed, or the manner in which the Intestate Laws are followed, after your death is known as "probate." Probate is the court-supervised process developed under Massachusetts law which transfers the assets in your name at your death to your beneficiaries. It also provides for the determination of the validity of any claims by creditors against your estate assets at your death. At the beginning of a probate administration, a petition is filed with the court, usually by the person or institution named in your Will as executor. After notice is given, and a hearing is held, your Will is admitted to probate and an executor is appointed. Disadvantages of a probate include its public nature, expenses, and the amount of time it takes. For this reason, creating a Revocable Living Trust can save time, money, and help maintain anonymity.

Back to Top of Page

Do I Need a Will if All of My Property is Already Non-Probate Property?

Even if your entire estate consists of property held in joint tenancy, a life insurance policy and a retirement plan (all of which are non-probate property), you still should consider making a Will, because if the other joint tenant dies before you do, then the property held in joint tenancy will be in your name alone and become probate property. If named beneficiaries die before you do, the assets subject to a beneficiary designation will now be payable to your estate. In addition, you may unexpectedly be entitled to a bonus, a prize, a refund, or may receive an unexpected inheritance which would would be probate property as well requiring transfer by a Will or the Massachusetts Intestate Laws. If you have minor children, the nomination of a guardian of their person and estate is also a very important reason for making a Will.

Back to Top of Page

Can Wills Be Changed?

Yes. You should review your Will periodically (at least every 3 to 5 years) because, if it is not up to date when you die, your estate may not be distributed as you wished and subject to Massachusetts Intestacy Laws. Your Will can be changed through a document called a codicil—a legal document which must be drafted and executed in accordance with the same Massachusetts laws that apply to Wills. A codicil is simply an amendment to your Will. Your Will must not be changed by crossing out words or sentences or making any notes or written corrections or it may have serious consequences. You should also review your Will when there are any major changes in your family (such as births, deaths, divorces, and marriages), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for the persons named as Guardian or Executor or Trustee to act in that capacity.

Back to Top of Page

How Should  Wills be Stored?

The location of your original Will should be known by your executor and your attorney, and possibly close friends or relatives. Your Will should be kept in a safe place such as your safe deposit box, your lawyer's safe, or a locked, fireproof box at your residence. If you keep your Will in a safe deposit box, you need to ensure that someone with be authorized to access this box on your behalf after your death.

Back to Top of Page

Will My Beneficiaries Have to Pay Massachusetts Estate Taxes or Federal Estate Taxes?

Assets that are transferred to either your spouse (if he or she is a U.S. citizen) or to charitable organizations are not subject to immediate estate taxes. Assets passing to other individuals will be taxed if the net value of those assets exceeds specified exemption amounts. For estates which approach or exceed this value, significant estate taxes can be saved by proper estate planning. That planning must usually be done before death and, in the case of married couples, before the death of the first spouse.

Back to Top of Page