Living together wills and trusts

The importance of a will cannot be overstated. To die without one, which the courts consider as dying intestate, opens up a legal can of worms that provides a real challenge for those that are determined to be heirs.

Massachusetts Leaves No Doubts

Surviving spouses, siblings, parents, and children all have claims to an estate, where no will has been prepared.

The probate process can be long and difficult, which necessarily means that it is costly, as well. This is not a situation anyone wants to put their family and loved ones through.

Setting forth a last will and testament removes all guesswork from the situation, and allows all members of your family to grieve your loss, without planning to maximize their own gains in probate court.

The issue of wills can be a thorny one, particularly for couples who are cohabiting with each other. Where one or both of the parties has children from a prior relationship, it is important to set forth what each one will receive as an inheritance. Some assets–especially stocks, cash, and insurance proceeds–can be divided up into equal parts without too much trouble. Personal property, though, can be another story.

Massachusetts Inheritance Options

Simply put, a three bedroom home cannot be equally divided among heirs. Whether to sell the house or keep possession of it–whether for living in it or producing rental income–is a difficult, and perhaps even impossible decision for all heirs to agree on. Putting conditions on the asset transfer, whatever those might be, will help to protect such assets from becoming the center of a controversy later on.

If the cohabiting parties would rather own their property as joint tenants with right of survivorship (or JTWROS), this has the effect of passing property to the surviving partner in a cohabiting relationship. However, this effectively removes any of the decedent’s children from a previous relationship as heirs to the estate. A carefully crafted will can identify what the properties to be passed on are, how much they are worth, and how to determine their valuation where no valuation exists.

What About the Children?

Another issue to think about when drafting a will is what should be done about any children who may be under 18 when the decedent passes away. Since assets and property cannot be left directly to a minor child, Trusts must be set up for the purpose of holding the asset until the child(ren) reaches any specified age, whether it be 18 or 21 or 25.

Will the child’s surviving parent, if any, be named as the guardian for the child? Or does perhaps the other party to the cohabitation arrangement arrange to fill this role instead? The one who has the will drawn up can make these decisions, in accordance with their personal wishes.

What Happens to the Stuff?

A final area to consider in a will is what becomes of the property located inside the place of residence? The art on the walls, the glassware in the cabinets, the assortment of power tools in the basement? Does the cohabitation partner receive everything, to be distributed as he or she sees fit at a later date? Or do certain items pass to the decedent’s heirs, instead? In other words, as George Carlin once put it, what happens to your stuff? A will determines the answers, and removes any ambiguity that may exist.

An old saying holds that the best time to plant a tree is twenty years ago, and the second-best time is right now. In other words, a person who has yet to tend to the issue of drafting a will, particularly after moving in with another person, should do so right away.

Contact the attorneys at the Living Together Law Center today for a discussion of issues regarding wills and trusts, to help you decide what happens to your stuff when you no longer need it anymore.