If you die without a will in Massachusetts, the state intestate laws will determine who inherits your probate property. It does not matter whether you wanted (or did not want) these people to inherit your assets; the administrator of your estate must distribute assets according to law.
Can I disinherit a child in Massachusetts?
Yes. An estate plan should be prepared with the help of an experienced attorney. The estate plan may include a revocable living trust, a valid last will, or both. These documents should be prepared with consideration that the documents may be challenged after your death by the disinherited child.
Do I Need a Will if I Have a Trust?
Yes, all adults should have a will. Even if most of your assets have been placed in a trust, there may be residual assets (like a forgotten bank account)) that is never made part of trust during life. Often, what is known as a “pour-over will” may be created by which such assets are transferred into a trust upon death.
If a will is not created but a trust exists, the assets owned by the trust will be managed and distributed in accordance with the trust. All other assets outside the trust will be distributed in accordance with state intestate law.
Can’t I Just Tell My Children Who Should Inherit My Assets Instead of Creating a Will or Trust? Why This is Not a Good Idea.
Many parents believe that they don’t need a will or trust because they believe that their children can simply divide their assets, especially if the children all get along well. However, there are a number of potential problems that can arise, as well as additional costs that may be needlessly incurred, in these situations. Let’s consider the following matters.
- Without a will or trust, the decedent does not direct the distribution of their personal property items among their beneficiaries.
In these situations, conflicts can arise among the surviving children, particularly over items with sentimental value. Assume a situation where each of the children is entitled to an equal share of the estate based upon the fair market value of the assets. “Fair Market Value” in this case does not take into account the sentimental value that may be placed on assets, such as heirloom jewelry, or other assets that may have great sentimental value. An estate plan using a Will and/or a Trust can specifically direct who gets what assets and avoid any unnecessary disputes among beneficiaries.
- Not everyone may hear the same information from a parent or loved one as to how property is to be divided.
For example, a parent may specifically tell one child that they are to inherit a specific piece of property, perhaps valuable jewelry. Later, the parent may tell another child that they are to get the same item, or the item may be lost, sold, or given away during the parent’s life. What happens after the parent dies and more than one child or beneficiary wants the jewelry? The children or beneficiaries are unnecessarily in a situation where they may each believe they are entitled to the jewelry, and a dispute started. The better approach is to specifically and in a legally enforceable manner, direct who is to get what as part of your wishes; a communication that all the beneficiaries can rely on in settling the estate.
- People often forget what they are told.
Suppose that a parent gathered all of the children together and announced who would inherit specific property, but the parent does not die for ten years. Will all of the children remember exactly which property their mom wanted each of them to have?
It’s likely, perhaps even probable, that they may not have such good memories. One child may believe (in good faith) that mom wanted him to have a specific piece of property, when in fact mom wanted that property to go to another child. There may be later statements made by the parent, as well as lifetime gifts by the parent, which also significantly alter the parent’s actual wishes after death. An updated trust is the recommended manner in which to reduce or eliminate these ambiguities and potential disputes.
- What about the after-acquired property?
Assume that a mom tells the children about how all of her property is to be divided, and then mom later sells her house and buys another, much more expensive, house. Did mom want the child who was promised the previously less expensive home to now receive the much more expensive home? What about other property that may be acquired after this family meeting – who gets that property?
What Will Be Your Legacy When Your Assets Are Distributed?
The scenarios described above are not uncommon. So, too, are the unnecessary heartache, disputes, and hurt feeling that arise without a will and trust as part of a comprehensive estate plan. In some situations, especially when much is at stake, these matters and disputes lead to lawsuits, often with attorneys’ fees significantly reducing the value of an estate.
I provide clients with options to minimize disputes through carefully crafted estate plans that take into a client’s estate distribution wishes. If you do not have an estate plan, I would invite you to call me and learn how I can help you.